ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
NICOLETTA ELIOPOULOS, Litigation Trustee of Estate of GEORGE ELIOPOULOS, NICOLETTA ELIOPOULOS, DEMETRA (also known as TOULA) ELIOPOULOS, TOM EILOPOULOS and MARY ANSCOMBE
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by THE MINISTER OF HEALTH AND LONG TERM CARE
Defendant
R. Douglas Elliot, Patricia A. LeFebour and Megan B. McPhee for the Plaintiffs
Dennis Brown Q.C., M. Michele Smith and Sandra Di Ciano for the Defendant
HEARD: October 20 and 21, 2004
Pitt J.
AMENDED REASONS FOR JUDGMENT
1This is a motion for an order:
(a) Granting leave to appeal to the Divisional Court from the order of The Honourable Madam Justice Speigel dated July 16, 2004, dismissing the defendant’s motion to strike under rule 21.01 (1) (b) of the Rules of Civil Procedure;
(b) Staying the order of The Honourable Madam Justice Speigel dated July 16, 2004.
2Rule 62.02 of the Rules of Civil Procedure provides that leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
OVERVIEW
3The impugned cause of action is grounded on the alleged failure by the provincial government to prevent the spread of West Nile Virus (“WNV”) with which the plaintiff became afflicted in or about September 2002. The decision marks the first time that a court in Canada has found that a public authority can be held liable in tort for failing to prevent the spread of a disease.
4The motions judge found in paragraph 24 of her reasons that what she described as the governing statute (the Health Protection and Promotion Act) “may give rise to a duty of care if the Anns Test is met.”
The penultimate paragraph of her reasons for judgment is:
59I find that it is not plain and obvious that the plaintiff cannot succeed at trial. A duty of care may be owed to the plaintiffs based on the alleged negligent implementation of the Plan. As a result, I dismiss the defendant’s motion and this action will proceed to trial. [My emphasis.]
See Anns v. Merton London Borough Council, [1978] A.C. 728. (H.L.)
5The written and oral arguments were extensive. This being a Leave Motion, I do not intend to attempt to summarize those arguments. Since, however, the statutory framework is the only source of a public authority’s duty, and because the motion’s judge referred to the Health Protection and Promotion Act as the governing statute, I consider it important to note the appellant’s submissions that there are three statutes that could govern Ontario’s powers with respect to WNV:
(a) Ministry of Health and Long Term Care Act, R.S.O. 1990, c. M.26;
(b) Health Protection and Promotion Act, R.S.O. 1990, c. H.7;
(c) Pesticides Act, R.S.O. 1990 c. P.11.
TEST A
As noted above, Rule 62.02 (a) requires as a condition for granting leave that there be a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted
6I shall begin by comparing the two key paragraphs in the motion judge’s reasons noted above with a passage from a recent decision of this court on which the appellant relies, and another passage from a decision of Madam Justice Sachs on which the respondent relies.
7In Mitchell Estate v. Ontario, 2004 4044 (ON SCDC), [2004] O.J. No. 3084 (Div. Ct.), in refusing to permit an action in which the Ministry of Health and Long Term Care Act and the Public Hospitals Act were engaged, the court said at paras. 9 and 10:
- The Supreme Court of Canada has made it clear that when determining whether a reasonable cause of action exists in negligence on the fact of the pleadings, a court should assess the question of whether a private law duty of care exists (see Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Edwards v. the Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; and Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263). In these cases, the Court considered the principles found in the decision of the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728 and concluded that there are two stages in the Anns test:
At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonable foreseeable consequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of the test, that tort liability should not be recognized here? The proximity analysis involved in the first stage of the Anns test focuses on the factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. (Cooper, at para. 30.)
- At the first stage of the Cooper test, the question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. Mere foreseeability of harm is not enough. There must be a sufficient degree of proximity between the parties to establish a duty of care.
8In Cheltenham Estates Ltd. v. Ontario, 2003 2976 (ON SC), [2003] 64 O.R. (3d) 620 (S.C.J.), in allowing a case to proceed where negligence was alleged against a government agency, Sachs J. said at para. 34:
I have set out the arguments on both sides of this question in such detail for two reasons. First, because the question of whether the defendant did owe a private duty of care to the plaintiffs was the threshold question on this motion. … Thus, on the question of whether or not the defendant owes a private duty of care to the plaintiffs in this case, I do not find that the motion should be granted.
9As can be seen from the above excerpts, to Sachs J. whether the defendant did owe a duty of care to the plaintiff was the threshold question. To the Divisional Court, the degree of proximity must be sufficient to establish a duty of care. To the motions judge, it is enough if a duty of care may be owed to the plaintiff. The respondent apparently takes the view that this is a distinction without a difference.
In view of the policy considerations that dominate the thinking in these kinds of actions, I believe that Mitchell Estate [supra] and the case at bar represent conflicting decisions grounded in the differences in the analysis of duty undertaken in Mitchell Estate and Cheltenham Estates Ltd. [supra] as opposed to the analysis in the case at bar.
10In addition, I agree with the appellant that the decision in the case at bar conflicts with Appellate Court decisions in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; and Odhavji Estate v. Woodhouse, [2003] SCC 69 (S.C.C.) in the analysis of the role of policy considerations at both stages of the Anns test in determining the scope of liability for negligence. It is apparent to me, that it is desirable that leave to appeal should be granted for an orderly development of this emerging area of law.
TEST B
As noted above, Rule 62.02 (b) requires as a condition for granting leave that there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
11Having found for the applicant based on Test A, it is not necessary to deal with Test B. However, it appears to me that there is good reason to doubt the correctness of the order with respect to what is obviously a matter of great public importance because of the motion judge’s failure to analyze the other two applicable statutes, and her policy analysis as it relates to the need for a record in the determination of whether what appears to be a new duty of care, should be recognized.
As Blair J. said in Walker v. Woodstock District Chamber of Commerce, [2000] O.J. No. 1994 (Div. Ct.) Court File No. 199/2000 at para. 13:
… In order to grant leave to appeal on the second branch of the Rule, that is, on the ground that there is good reason to doubt its correctness, it is not necessary that I disagree with the reasons of the learned motions judge or that I think they are wrong. It is sufficient to show that the correctness of the order is open to serious debate: Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282, per Farley J. at p. 284.
12Leave to appeal is, therefore, granted.
MOTION TO STAY
13I find that the tests for granting stay, namely, a serious triable issue, irreparable harm accruing to the appellant, and the balance of convenience favouring the appellant, have been met. Accordingly, the stay is hereby granted pending the disposition of the appeal or as this court may otherwise determine.
14In light of the death of the primary plaintiff, I encourage the court administration to expedite the appeal if it is at all possible.
COSTS
15Subject to any agreement between the parties, brief written submissions on costs are to be made within 20 days of the release of these reasons.
Pitt J.
Released: November 3, 2004
COURT FILE NO.: 420/04
DATE: November 3, 2004
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
NICOLETTA ELIOPOULOS, Litigation Trustee of Estate of GEORGE ELIOPOULOS, NICOLETTA ELIOPOULOS, DEMETRA (also known as TOULA) ELIOPOULOS, TOM EILOPOULOS and MARY ANSCOMBE
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by THE MINISTER OF HEALTH AND LONG TERM CARE
Defendant
AMENDED REASONS FOR JUDGMENT
Pitt J.
Released: November 3, 2004