PUBLIC HEALTH LAW:PUBLIC HEALTH LAW:

The potential for negligence actions The potential for negligence actions against public health authoritiesagainst public health authorities

Lori StoltzLori Stoltz Adair Morse LLPAdair Morse LLP

Board of Health Section General Meeting23 October 2009

Mark SiboniCity of Toronto,Legal Department

OverviewOverview

• Preliminary points: proper parties, limitation periods, class Preliminary points: proper parties, limitation periods, class proceedingsproceedings

• Negligence 101Negligence 101

• Principles emerging from recent cases in the public health context:Principles emerging from recent cases in the public health context:• Policy-making activitiesPolicy-making activities• Operational activitiesOperational activities

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Who can be sued for what?Who can be sued for what?

• Theoretically, anyone for anythingTheoretically, anyone for anything

• Practically speaking, it’s a shorter list in the Practically speaking, it’s a shorter list in the public health contextpublic health context

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WhoWho• ProvinceProvince

• Ontario Agency for Health Protection and PromotionOntario Agency for Health Protection and Promotion

• Boards of HealthBoards of Health

• Individuals: MOH, PHI, employees, members of boards of healthIndividuals: MOH, PHI, employees, members of boards of health

• Federally: Health Canada, PHAC, employeesFederally: Health Canada, PHAC, employees

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HPPA, section 95HPPA, section 95

• Immunity from personal liability for individualsImmunity from personal liability for individuals

• ““Good faith” limitsGood faith” limits

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HPPA, section 95(1) – ProtectionHPPA, section 95(1) – Protection against personal liability against personal liability

• No action or other proceeding for damages or otherwise shall be No action or other proceeding for damages or otherwise shall be instituted against the Chief MOH or the Associate Chief MOH, a instituted against the Chief MOH or the Associate Chief MOH, a member of a board of health, a MOH, an AMOH of a board of health, an member of a board of health, a MOH, an AMOH of a board of health, an acting MOH of a board of health or a public health inspector or an acting MOH of a board of health or a public health inspector or an employee of a board of health who is working under the direction of a employee of a board of health who is working under the direction of a MOH for MOH for any act done in good faithany act done in good faith in the execution or the intended in the execution or the intended execution of any duty or power under this Act or for any alleged neglect execution of any duty or power under this Act or for any alleged neglect or default in the execution in good faith of any such duty or power.or default in the execution in good faith of any such duty or power.

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Comparable protections for:Comparable protections for:

• Persons acting under orders, directions or Persons acting under orders, directions or directives: HPPA, section 95(1.2)directives: HPPA, section 95(1.2)

• Persons making communicable or reportable Persons making communicable or reportable disease reports: HPPA, section 95(4)disease reports: HPPA, section 95(4)

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• NotNot relieved from liability: relieved from liability:• Board of health: HPPA, section 95(3)Board of health: HPPA, section 95(3)• Crown (the Province): HPPA, section 95(1.1)Crown (the Province): HPPA, section 95(1.1)

• No similar provisions to preclude judicial reviewNo similar provisions to preclude judicial review

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Other preliminary pointsOther preliminary points

• Limitation periodsLimitation periods

• Class proceedingsClass proceedings

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Negligence 101Negligence 101

• DutyDuty

• BreachBreach

• Damage or InjuryDamage or Injury

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The Duty of CareThe Duty of Care

• ProximityProximity

• Overarching Policy ConsiderationsOverarching Policy Considerations

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Principles emergingPrinciples emerging from recent cases from recent cases

There is a distinction that the Courts have been There is a distinction that the Courts have been making between:making between:

• Duties owed to the public as a whole.Duties owed to the public as a whole.

• A private law duty of care.A private law duty of care.

• Policy-making activities of public health as an Policy-making activities of public health as an important distinguishing feature.important distinguishing feature.

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PearsonPearson v. v. Inco Ltd.Inco Ltd.

• A proposed class action alleging negligence on A proposed class action alleging negligence on the part of Inco Ltd. in operating a refinery that the part of Inco Ltd. in operating a refinery that emitted toxic substances into the environment.emitted toxic substances into the environment.

• The Regional Municipality of Niagara was a The Regional Municipality of Niagara was a defendant on the basis that it was liable for the defendant on the basis that it was liable for the negligence of its Medical Officer of Health.negligence of its Medical Officer of Health.

• The class action proceeding was not certified as The class action proceeding was not certified as against Niagara and the case against them did against Niagara and the case against them did not progress beyond certification.not progress beyond certification.

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EliopoulosEliopoulos v. v. OntarioOntario

• The estate of an individual who had contracted The estate of an individual who had contracted West Nile Virus (“WNV”) and died sued the West Nile Virus (“WNV”) and died sued the provincial Crown.provincial Crown.

• It was alleged that the Minister of Health and It was alleged that the Minister of Health and Long-Term care was negligent in failing to take Long-Term care was negligent in failing to take reasonable steps to prevent the spread of WNV.reasonable steps to prevent the spread of WNV.

• The Court of Appeal struck the plaintiff’s claim in The Court of Appeal struck the plaintiff’s claim in its entirety.its entirety.

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WilliamsWilliams v. v. Canada (A.G.)Canada (A.G.)

• A proposed class action was advanced by individuals who had A proposed class action was advanced by individuals who had contracted SARS during SARS 2.contracted SARS during SARS 2.

• The claim was brought against all three levels of government – the The claim was brought against all three levels of government – the federal Crown, the provincial Crown, and the City of Toronto.federal Crown, the provincial Crown, and the City of Toronto.

• The claim, in its entirety, was dismissed as against the federal The claim, in its entirety, was dismissed as against the federal Crown and the City of Toronto by the Superior Court of Justice. Crown and the City of Toronto by the Superior Court of Justice. Part of the claim was dismissed as against the Province.Part of the claim was dismissed as against the Province.

• The Court of Appeal has since dismissed the claim against the The Court of Appeal has since dismissed the claim against the Province in its entirety. Province in its entirety.

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Principles emergingPrinciples emerging from recent cases from recent cases

• Operational activities of public healthOperational activities of public health

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MorganMorgan v. v. Metropolitan Toronto (City)Metropolitan Toronto (City)

• Vaccine recipient alleged negligence for failure to warn of Vaccine recipient alleged negligence for failure to warn of adverse effectsadverse effects

• Action dismissed by Superior Court of Justice, 2006Action dismissed by Superior Court of Justice, 2006

• Result affirmed by Court of Appeal for Ontario, 2008Result affirmed by Court of Appeal for Ontario, 2008

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St. Elizabeth Home Society St. Elizabeth Home Society v.v. Hamilton (City)Hamilton (City)

• Lodging house alleges negligence (and other Lodging house alleges negligence (and other claims) in enforcement actionclaims) in enforcement action

• Action dismissed by Superior Court of Justice, Action dismissed by Superior Court of Justice, 20052005

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Healy Healy v.v. Lakeridge Health Corporation Lakeridge Health Corporation

• Proposed representative plaintiff exposed to TBProposed representative plaintiff exposed to TB

• Certification motion adjournedCertification motion adjourned

• Motion pending for summary judgment on grounds that Motion pending for summary judgment on grounds that there is no duty of carethere is no duty of care

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