1. PUBLIC HEALTH LAW: The potential for negligence actions against public health authorities Lori Stoltz Lori Stoltz Adair Morse LLP Adair Morse LLP Board of Health Section General Meeting 23 October 2009 Mark Siboni City of Toronto, Legal Department

2. Overview Overview Preliminary points: proper parties, limitation periods, class proceedings Preliminary points: proper parties, limitation periods, class proceedings Negligence 101 Negligence 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 2

3. Who can be sued for what? Who can be sued for what? Theoretically, anyone for anything Theoretically, anyone for anything Practically speaking, it’s a shorter list in the public health context Practically speaking, it’s a shorter list in the public health context 3

4. Who Who Province Province Ontario Agency for Health Protection and Promotion Ontario Agency for Health Protection and Promotion Boards of Health Boards of Health Individuals: MOH, PHI, employees, members of boards of health Individuals: MOH, PHI, employees, members of boards of health Federally: Health Canada, PHAC, employees Federally: Health Canada, PHAC, employees 4

5. HPPA, section 95 HPPA, section 95 Immunity from personal liability for individuals Immunity from personal liability for individuals “Good faith” limits “Good faith” limits 5

6. HPPA, section 95(1) – Protection against personal liability HPPA, section 95(1) – Protection against personal liability No action or other proceeding for damages or otherwise shall be 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 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 MOH for any act done in good faith in the execution or the intended 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. No action or other proceeding for damages or otherwise shall be 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 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 MOH for any act done in good faith in the execution or the intended 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. 6

7. Comparable protections for: Comparable protections for: Persons acting under orders, directions or directives: HPPA, section 95(1.2) Persons acting under orders, directions or directives: HPPA, section 95(1.2) Persons making communicable or reportable disease reports: HPPA, section 95(4) Persons making communicable or reportable disease reports: HPPA, section 95(4) 7

8. Not relieved from liability: Not 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 review No similar provisions to preclude judicial review 8

9. Other preliminary points Other preliminary points Limitation periods Limitation periods Class proceedings Class proceedings 9

10. Negligence 101 Negligence 101 Duty Duty Breach Breach Damage or Injury Damage or Injury 10

11. The Duty of Care The Duty of Care Proximity Proximity Overarching Policy Considerations Overarching Policy Considerations 11

12. Principles emerging from recent cases Principles emerging from recent cases There is a distinction that the Courts have been 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 important distinguishing feature. Policy-making activities of public health as an important distinguishing feature. 12

13. Pearson v. Inco Ltd. A proposed class action alleging negligence on the part of Inco Ltd. in operating a refinery that emitted toxic substances into the environment. A proposed class action alleging negligence on the part of Inco Ltd. in operating a refinery that emitted toxic substances into the environment. The Regional Municipality of Niagara was a defendant on the basis that it was liable for the negligence of its Medical Officer of Health. The Regional Municipality of Niagara was a defendant on the basis that it was liable for the negligence of its Medical Officer of Health. The class action proceeding was not certified as against Niagara and the case against them did not progress beyond certification. The class action proceeding was not certified as against Niagara and the case against them did not progress beyond certification. 13

14. Eliopoulos v. Ontario The estate of an individual who had contracted West Nile Virus (“WNV”) and died sued the provincial Crown. The estate of an individual who had contracted West Nile Virus (“WNV”) and died sued the provincial Crown. It was alleged that the Minister of Health and Long-Term care was negligent in failing to take reasonable steps to prevent the spread of WNV. It was alleged that the Minister of Health and Long-Term care was negligent in failing to take reasonable steps to prevent the spread of WNV. The Court of Appeal struck the plaintiff’s claim in its entirety. The Court of Appeal struck the plaintiff’s claim in its entirety. 14

15. Williams v. Canada (A.G.) A proposed class action was advanced by individuals who had contracted SARS during SARS 2. A proposed class action was advanced by individuals who had contracted SARS during SARS 2. The claim was brought against all three levels of government – the federal Crown, the provincial Crown, and the City of Toronto. The claim was brought against all three levels of government – the federal Crown, the provincial Crown, and the City of Toronto. The claim, in its entirety, was dismissed as against the federal Crown and the City of Toronto by the Superior Court of Justice. Part of the claim was dismissed as against the Province. The claim, in its entirety, was dismissed as against the federal Crown and the City of Toronto by the Superior Court of Justice. Part of the claim was dismissed as against the Province. The Court of Appeal has since dismissed the claim against the Province in its entirety. The Court of Appeal has since dismissed the claim against the Province in its entirety. 15

16. Principles emerging from recent cases Principles emerging from recent cases Operational activities of public health Operational activities of public health 16

17. Morgan v. Metropolitan Toronto (City) Morgan v. Metropolitan Toronto (City) Vaccine recipient alleged negligence for failure to warn of adverse effects Vaccine recipient alleged negligence for failure to warn of adverse effects Action dismissed by Superior Court of Justice, 2006 Action dismissed by Superior Court of Justice, 2006 Result affirmed by Court of Appeal for Ontario, 2008 Result affirmed by Court of Appeal for Ontario, 2008 17

18. St. Elizabeth Home Society v. Hamilton (City) St. Elizabeth Home Society v. Hamilton (City) Lodging house alleges negligence (and other claims) in enforcement action Lodging house alleges negligence (and other claims) in enforcement action Action dismissed by Superior Court of Justice, 2005 Action dismissed by Superior Court of Justice, 2005 18

19. Healy v. Lakeridge Health Corporation Healy v. Lakeridge Health Corporation Proposed representative plaintiff exposed to TB Proposed representative plaintiff exposed to TB Certification motion adjourned Certification motion adjourned Motion pending for summary judgment on grounds that there is no duty of care Motion pending for summary judgment on grounds that there is no duty of care 19

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