SARS Update on Claims Against Government Defendants

By Michael McKelvey and Barbara Walker-Renshaw

Unbeknownst to many Ontarians, the SARS outbreak prompted a flurry of civil claims. There is a class action being pursued on behalf of anyone who contracted SARS, or anyone related to anyone who contracted SARS, between April 20, 2003 and July 31, 2003. In addition, many of the nurses who contracted SARS are pursuing a claim and finally several groups of individual plaintiffs are suing for damages arising from the SARS outbreak. The various plaintiffs have selected different defendants to target in their litigation. The class action was brought against three levels of government – Government of Canada (Health Canada), Government of Ontario (Ministry of Health and Long Term Care) and the City of Toronto, while the nurses are claiming only against the Ontario Government. The individual actions have named a variety of defendants including the Ontario Government, hospitals and physicians.

The SARS outbreak and related litigation continues to garner media attention. Below, we aim to explain the media coverage and to outline what is happening in the SARS litigation. The government involvement in this litigation is unique. Typically, front line care providers – hospitals, nurses and physicians – are called to account in civil actions to defend the care provided to a particular patient. Plaintiffs who have sought to involve a government defendant – for example by alleging that a lack of funding contributed to substandard care – have failed. SARS may become one of the first cases in which the Ontario Government is required to defend its conduct in managing a particular issue in the healthcare system. The outcome of this litigation could have a significant impact on future claims.

In each of the actions in which government defendants are named as defendants, they brought a motion seeking to have the claim dismissed. This is called a Rule 21 motion. In this type of motion a Court is required to determine, on the basis of the pleadings alone, whether there is a legal argument to support the plaintiffs’ claim. In order to have a claim against a defendant dismissed on a Rule 21 motion, it must be "plain and obvious" that the action cannot proceed. The motions in this case were heard before the Honourable Justice Cullity of the Ontario Superior Court.

In the class proceeding, Justice Cullity struck the pleadings in their entirety against the Government of Canada and the City of Toronto, accordingly, the action as against these defendants was dismissed.

In contrast, Mr. Justice Cullity ruled that the Ontario Government remain the sole defendant in the class action. Justice Cullity struck out some of the allegations made by the plaintiffs but allowed them to continue with many of the allegations. He made the same decision in a few other individual actions in which the Ontario Government has been named as a defendant.

At the motion, the Ontario Government took the position that it did not owe a private duty of care to the plaintiffs. It argued that any duty that was owed was only a duty to the public at large and did not create responsibility to any of the individual plaintiffs.

In order to establish a private duty of care against a government defendant the case law requires that the harm (contracting of SARS) be reasonably foreseeable and that there be a close and direct relationship between the parties. If the plaintiff can establish that the harm was foreseeable and the relationship was direct or proximate then the Court assumes that a duty of care has been established.

If the plaintiff crosses this hurdle, the Court must consider whether there are residual policy considerations, outside the relationship, that would override the government actor’s assumed duty of care. With respect to government defendants the courts have held that a duty of care will not be imposed where the government is acting in a policy-making role as opposed to performing an operational function, often stating that governments are to be judged for their "policy" decisions at the polls, not by a judge in a courtroom.

As expected, much of the argument at the hearing of the Rule 21 motions focused on whether the various governments were acting in a policy making or operational role during the SARS outbreak. The government lawyers suggested that it was all policy while the plaintiffs argued that the conduct was operational in nature.

Justice Cullity accepted that the Federal Government was acting in a policy-making capacity. However, he ruled that with respect to some of the allegations against the Ontario Government he could not make this decision without evidence to be heard at a trial. In coming to this decision, Justice Cullity ruled that it was not "plain and obvious" that the plaintiffs would be unable to establish proximity between the Government of Ontario and the plaintiffs in the class action. Furthermore, it was not "plain and obvious" that the Government of Ontario was acting in a policy-making rather than an operational capacity.

The City of Toronto was successful in having the claim against it struck on the basis that the Toronto Board of Health is a separate legal entity from the City of Toronto. Thus, the City of Toronto is not in law responsible for the conduct of the Board of Health. Similar motions were heard in the other individual actions involving the Ontario Government. Justice Cullity’s rulings are now under appeal. The Ontario Government is appealing in the hopes of having all of the claims against it struck out. The plaintiffs, in turn, are appealing to have the allegations that were struck out reinstated.

The ultimate outcome of these motions, after all appeals are exhausted, will have a significant impact on the legal landscape in Ontario. If the plaintiffs succeed, it will demonstrate a slight opening of the door in an effort to hold governments legally accountable for actions of an operational nature. It could also open the door to increasing litigation against government defendants, especially when governments engage in responding to unforeseen emergencies. Alternatively, if the Government prevails at the end of the day, it will be considered much more difficult to pursue a claim against a government defendant. The issues at stake are significant – both for the individual people involved and the important legal issue under debate. We would not be surprised to see these issues debated at the highest court in the land – the Supreme Court of Canada.

Michael McKelvey and Barbara Walker-Renshaw of Borden Ladner Gervais LLP represented the interests of the defendant Hospitals on these motions. The leading decision of the five Rule 21 motions can be found on line at http://www.canlii.org/on/cas/onsc/2005/2005onsc14422.html.

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