Ontario Court of Appeal Ends West Nile Virus Litigation

January 1, 2007
Author: Charles M.K. Loopstra, Q.C.

The Ontario Court of Appeal in a decision released on November 3, 2006 reversed the decision of the Divisional Court which in turn had upheld a decision by the Superior Court motion judge in refusing to strike the statement of claim against the Province of Ontario. The litigation was one of 40 similar actions brought by Ontario residents who contracted the West Nile Virus (“WNV”) in 2002.

The lower court decisions were previously commented on in “Municipal Liability Issues and West Nile Virus – an Update” ((2004-05 6 Mun. L. R. Mgt. 92). In a unanimous decision of the court written by Mr. Justice Sharpe, the Ontario Court of Appeal struck the amended statement of claim in a Rule 21 motion (that it is plain and obvious that the pleadings disclose no reasonable cause of action).

The decision is important for a number of reasons:

it provides new hope for pre-emptive strikes, such as a motion pursuant to Rule 21;
it reinforces the test set out by the Supreme Court of Canada in Cooper and Edwards to determine whether the Province owes a private law duty of care;
discretionary statutory powers, to be exercised in the general public interest, do not give rise to a private law duty sufficient to ground an action in negligence; and
the adoption of the West Nile Virus: Surveillance and Prevention in Ontario, 2001 (“WNV Plan”) did not engage the province at the operational level, attracting private law duties for negligent implementation.

PRE-EMPTIVE STRIKES

Both lower courts had refused to strike the statement of claim. The Divisional Court had noted that the threshold for resisting a Rule 21 motion was quite low and that it was primarily a mechanism to be used for preventing abuses of process. It was stated that even a germ or scintilla of a cause of action will suffice to maintain a claim. This approach would obviously rule out a pre-emptive strike, especially if the plaintiff’s lawyer is creative in his pleading or pleads a novel cause of action.

Although the Court of Appeal agreed with the general tests to be applied in Rule 21 motions, namely that:

it is plain, obvious, and beyond doubt that the plaintiff could not succeed;
the claim must be read generously with allowance for inadequacies due to drafting deficiencies; and
the claim should not be dismissed simply because it is novel,

the court also noted that the question of whether Ontario owes the plaintiffs a prima facie duty of care is a question of law that can be decided on a Rule 21 motion.

DOES A PRIVATE LAW DUTY EXIST?

In analyzing this question, the court went back to first principles, namely the two part Anns test established by the House of Lords and refined by the Supreme Court of Canada in Cooper :

was the harm that occurred the reasonably foreseeable consequence of the defendant’s act?
are there reasons, notwithstanding the proximity between the parties established by the first part of the test, that tort liability should not be recognized?

As a result of the application of the Anns test with special reference to the proximity test defined by Cooper, the court found that there is no category of cases that supports the plaintiffs’ assertion that Ontario owes a private law duty of care to protect all persons within its boundaries from contracting WNV. Even when the court recognized that the Supreme Court of Canada in Cooper held that the categories of negligence enumerated by it are not closed and that the law must remain open to the recognition of new duties of care, the court could not find such a duty.

The court examined the plaintiffs’ assertion that proximity can be made out, and hence the source of the duty, from the provisions of the Health Protection and Promotion Act (“HPPA’). In this regard, Sharpe, J.A. wrote:

…these important and extensive statutory provisions create discretionary powers that are not capable of creating a private law duty. The discretionary powers created by the HPPA are to be exercised, if the Minister chooses to exercise them, in the general public interest. They are not aimed at or geared to the protection of the private interests of specific individuals.

The court concluded that although there is a duty to prevent the spread of infectious diseases, a general public law duty of that nature does not give rise to a private law duty sufficient to ground an action in negligence.

The court also found that the plaintiffs could not succeed on the second branch of the Anns test, namely that there are residual policy considerations outside the relationship of the parties that negative the imposition of a private law duty.

Sharpe, J.A. wrote:

The risk of contracting disease spread by mosquitoes is one to which all who live in Ontario are exposed. It is not a risk that is created by the provincial government or that arises from the use of a public facility…In deciding how to protect its citizens from risks of this kind…Ontario must weigh and balance the many competing claims for the scarce resources available…Public health authorities should be left to decide where to focus their attention and resources without the fear or threat of lawsuits.

DID THE WNV PLAN ENGAGE THE PROVINCE AT AN OPERATIONAL LEVEL?

To overcome the legal hurdle that the province owed no private law duty of care to the plaintiffs by virtue of the HPPA, the plaintiffs also argued that the adoption of the WNV Plan by the Province was a policy decision which engaged the Province at an operational level. If that were true, simple allegations of negligence at the operational level would survive a Rule 21 motion.

The court of appeal rejected the plaintiffs’ submissions for three reasons:

the WNV Plan was not a policy decision of the kind that would engage the Province at the operational level;
in any event, the operational duties identified by the HPPA and the WNV Plan resided with local authorities and local boards of health; and
the statement of claim essentially alleges failure to adopt adequate policies, rather than implementing the WNV Plan in a non-negligent manner.

On the first issue the court concluded that the WNV Plan represented an attempt by the Ministry to encourage and co-ordinate appropriate measures to reduce the risk of WNV by providing information to local authorities and the public. On the second issue, the motions judge had concluded that the WNV Plan had identified “hot spots” which were geographical areas where infected birds were detected, thereby forming the basis for a special relationship of proximity. This approach was rejected by the court of appeal as not necessarily engaging the Province at the operational level. Sharpe, J.A. observed:

            The Ministry undertook to do very little, if anything at all, beyond providing information and encouraging co-ordination. The implementation of specific measures was essentially left to the members of the public, local authorities, and local boards of health.

On the third issue, the court concluded that broad ranging allegations that Ontario failed to adopt adequate policies and failed to devote adequate resources to prevent the spread of WVN, are the very policy decisions that are immune from liability. As the Supreme Court of Canada stated in Brown v. British Columbia (Minister of Transportation and Highways) :

True policy decisions involve social, political and economic factors. In such decisions, the authority attempts to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertakings and of their actual performance.

The court therefore concluded that the allegations in the statement of claim relate to issues of public health policy, the establishment of governmental priorities, and the allocation of scarce health care resources, not the implementation of a specific policy at the operational level.

CONCLUSION

The plaintiffs did not sue the local boards of health or the affected municipalities. With respect to municipal liability, in Williams v. AG Canada et al , a SARS decision, the court on a Rule 21 motion determined that the City of Toronto had no vicarious liability for its health unit, since it operates as a separate legal entity under the HPPA. Absent a specific pleading of negligence by the City founded on a bona fide private law duty, we submit the results would have been the same in Eliopoulos.

Whether a local municipality is at risk in WNV cases remains to be determined. To a large extent it depends on the nature of the actions it takes, whether it carries out operational functions without negligence, and whether the negligence materially contributed to the injury. For a more detailed discussion on this topic see “Municipal Liability Issues and West Nile Virus” (2003-04) 5 M.L.R. Mgt. 81. Some comfort can be derived from the comments made by Sharpe, J.A. in Eliopoulos that where a defendant assumes general responsibility for promoting public health, there is no proximity unless facts are pleaded to distinguish the risk faced by the plaintiff from the risk faced by everyone else.

Eliopoulos Estate v. Ontario (Minister of Health and Long-Term Care), 2006 CanLII 37121 (ON C.A.)

Cooper v. Hobart, [2001] 3 S.C.R. 537

Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562

supra

R.S.O. 1990, c. H.7

[1989] 2 S.C.R. 1228

(2005), 76 O.R. (3d) 763 (S.C.J.)

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