Mitchell, deceased, by her Litigation Administrator Mitchell et al. v. Her Majesty the Queen in Right of Ontario [Indexed as: Mitchell (Litigation Administrator of) v. Ontario]

71 O.R. (3d) 571

[2004] O.J. No. 3084

Court File No. 311/02

Ontario Superior Court of Justice,

Divisional Court,

O'Driscoll, Meehan and Swinton JJ.

July 19, 2004

Fiduciaries -- Government -- Plaintiffs bringing action alleging that child's death in crowded hospital emergency department resulted from breach of fiduciary duty by provincial Premier and Minister of Health for which province was vicariously liable -- Motions judge erring in not striking statement of claim -- No Ontario representative having duty to act in best interests of plaintiffs -- Minister of Health having general public duty to act in interest of public as whole -- Plaintiffs having no property interest in provincial funds which might be allocated for [page572] health care -- Concerns about allocation of funds for health care should be dealt with in political arena rather than in civil action.

Torts -- Abuse of public office -- Plaintiffs bringing action alleging that child's death in crowded hospital emergency department resulted from abuse of public office by provincial Premier and Minister of Health for which province was vicariously liable -- Motions judge erring in not striking statement of claim -- Elements of tort of abuse of public office not established -- Premier and Minister not engaging in deliberate and unlawful conduct aimed at plaintiffs.

Torts -- Negligence -- Plaintiffs bringing action alleging that child's death in crowded hospital emergency department resulted from negligence of provincial Premier and Minister of Health for which province was vicariously liable -- Defendant not having private law duty of care to plaintiffs -- Even if duty of care existed, decisions regarding budgetary allocations for government entities constituting policy decisions for which government actors are not liable in negligence -- Motions judge erring in not striking statement of claim.

Following the death of an infant while receiving care at a hospital emergency department, the plaintiffs brought an action alleging that the child did not receive proper treatment quickly enough and that the overcrowded conditions at the hospital contributed to her death. They alleged that those conditions were caused by the reductions in hospital funding and restructuring decisions of a former Ontario Premier and former Minister of Health, as well as employees of the Ministry of Health, for whose torts Ontario was vicariously liable. They claimed that the wrongful funding and restructuring decisions were actionable as negligence, breach of contract, abuse of public office and breach of fiduciary duty and were contrary to ss. 7 and 12 of the Canadian Charter of Rights and Freedoms. On a motion to strike the statement of claim as disclosing no reasonable cause of action, the motions judge struck out the breach of contract claim and the Charter claim but did not strike out the allegations of negligence, abuse of public office and breach of fiduciary duty. The defendant appealed.

Held, the appeal should be allowed.

The motions judge erred in failing to apply the jurisprudence of the Supreme Court of Canada with respect to the existence of a private law duty of care. While the plaintiffs pleaded that there was a duty of care, it was clear from the decisions of the Supreme Court of Canada that the existence of a duty of care is a legal issue, and whether such a duty of care exists in law can be determined on a Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)(b) motion. The relationship between the plaintiffs and the defendant did not fall within any of the categories in which a duty of care has been recognized, and it would not be appropriate to recognize a new duty of care in this case. A consideration of the governing statutory framework made it clear that the requisite proximity in the relationship between the plaintiffs and the defendant had not been established so as to give rise to a private law duty of care. Even if that conclusion was wrong and the plaintiffs could possibly establish a prima f acie duty of care, it was still plain and obvious that they could not succeed as decisions regarding budgetary allocations for government entities are classified as policy decisions, for which government actors are not liable in negligence. The motions judge erred in failing to strike out the claim in negligence. [page573]

In order to establish liability for abuse of public office, the plaintiffs would have to prove that the former Premier and Minister of Health or Ministry employees engaged in deliberate and unlawful conduct directed at the plaintiffs. Essential to a finding of liability was an element of bad faith or dishonesty. Neither the former Premier nor Ministry employees had statutory duties or powers with respect to funding, restructuring or appointing a supervisor for a hospital. Therefore, there was no basis to find that they exercised a statutory power unlawfully. Moreover, there was no pleading that they engaged in deliberate conduct aimed at the plaintiffs. Therefore, it was plain and obvious that this tort claim had to fail as it related to their conduct. With respect to the former Minister, there was no pleading that she had deliberately exercised a statutory power in an unlawful manner. At most, the allegations against her were of negligence, not deliberate unlawful conduct. This was not sufficient to attract liability for abuse of public office. It was plain and obvious that there was no reasonable cause of action for the tort of abuse of public office.

With respect to the claim of breach of fiduciary duty, no trustee-beneficiary relationship or agent-principal relationship was pleaded, nor could there be one as a matter of law. Moreover, the governing statutory regime made it clear that there could not have been a duty on any Ontario representative to act in the best interests of the plaintiffs. The Minister's duty was a general public duty to act in the interest of the public as a whole. The plaintiffs had no property interest in the funds of the province of Ontario that might be allocated for health care. Concerns about the allocation of funds for health care are to be dealt with in the political arena, rather than in a civil action in the courts. It was plain and obvious that the claim for breach of fiduciary duty was bound to fail.

APPEAL by defendant from decision of Dyson J., [2002] O.J. No. 2100 (S.C.J.) dismissing in part defendant's motion to strike statement of claim.

Cooper v. Hobart, [2001] 3 S.C.R. 537, 96 B.C.L.R. (3d) 36, 206 D.L.R. (4th) 193, 277 N.R. 113, [2001] 11 W.W.R. 221, 2001 SCC 79, 8 C.C.L.T. (3d) 26 (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.) et al.); Decock v. Alberta, 2000 ABCA 122, [2000] A.J. No. 419, 186 D.L.R. (4th) 265 (C.A.); Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, 56 O.R. (3d) 456n, 206 D.L.R. (4th) 211, 277 N.R. 145, 2001 SCC 80, 8 C.C.L.T. (3d) 153, 13 C.P.C. (5th) 35; Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 2001 21164 (ON CA), 56 O.R. (3d) 505, 208 D.L.R. (4th) 577, 89 C.R.R. (2d) 1 (C.A.); Mount Sinai Hospital Centre v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 200 D.L.R. (4th) 193, 271 N.R. 104, 2001 SCC 41; Odhavji Estate v. Toronto (Metropolitan) Police Force, [2003] 3 S.C.R. 263, 233 D.L.R. (4th) 193, 312 N.R. 305, 2003 SCC 69, 19 C.C.L.T. (3d) 163, [2003] S.C.J. No. 74, 11 Admin. L.R. (4th) 4 5 (sub nom. Odhavji Estate v. Woodhouse, Odhavji Estate v. Metropolitan Toronto Police Force), consd Other cases referred to Alcock v. Chief Constable of the South Yorkshire Police, [1991] 4 All E.R. 907, [1992] 1 A.C. 310, [1991] 3 W.L.R. 1057, 136 So1. Jo. L.B. 9, [1992] 3 L.S. Gaz. R. 34, 8 B.M.L.R. 37 (H.L.); Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 W.L.R. 1024, 121 Sol. Jo. 377, 75 L.G.R. 555 (H.L.); Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40, 2003 SCC 39, 227 D.L.R. (4th) 385, 306 N.R. 335, 109 C.R.R. (2d) 220, revg (2002), 2002 23598 (ON CA), 58 O.R. (3d) 417, 215 D.L.R. (4th) 496, 92 C.R.R. (2d) 224 (C.A.), supp. reasons (2002), 66 O.R. (3d) 734n, 2002 44976 (ON CA), 215 D.L.R. (4th) 544, 35 C.P.C. (5th) 203 (C.A.), affg (2000), 2000 22731 (ON SC), 53 O.R. (3d) 221, 84 C.R.R. (2d) 211 (S.C.J.); Guerin v. R., 1984 25 (SCC), [1984] 2 S.C.R. 335, 59 B.C.L.R. 301, 13 D.L.R. (4th) 321, 55 N.R. 161, [1984] 6 W.W.R. 481, 20 E.T.R. 6, 36 R.P.R. 1; Hodgkinson v. Simms, 1994 70 (SCC), [1994] 3 S.C.R. 377, 97 B.C.L.R. (2d) 1, 117 D.L.R. (4th) 161, 171 N.R. 245, [1994] 9 W.W.R. 609, 16 B.L.R. (2d) 1, 22 C.C.L.T. (2d) 1, 57 C.P.R. (3d) 1, 95 D.T.C. 5135, 5 E.T.R. (2d) 1; [page574] Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105 (sub nom. Hunt v. T & N plc); Just v. British Columbia, 1989 16 (SCC), [1989] 2 S.C.R. 1228, 41 B.C.L.R. (2d) 350, 64 D.L.R. (4th) 689, 103 N.R. 1, [1990] 1 W.W.R. 385, 1 C.C.L.T. (2d) 1, 18 M.V.R. (2d) 1; R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 2731 (ON CA), 5 O.R. (3d) 778, [1991] O.J. No. 1962 (C.A.); Roncarelli v. Duplessis, 1959 50 (SCC), [1959] S.C.R. 121, 16 D.L.R. (2d) 689 Statutes referred to Canada Health Act, R.S.C. 1985, c. C-6, ss. 7-17 Canadian Charter of Rights and Freedoms, ss. 7, 12 Ministry of Health Act, R.S.O. 1990, c. M.26, ss. 3, 6, 8 Public Hospitals Act, R.S.O. 1990, c. P.40, ss. 5(1), 6, 9, 9.1 Savings and Restructuring Act, 1996, S.O. 1996, c. 1, Sch. F, s. 6 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1) (b) Treaties and conventions referred to Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, USSR, 6-12 September 1978 Declaration of the Rights of the Child, GA res. 1386 (XIV), 14 UN GAOR Supp. (No. 16) at 19, UN Doc. A/4354 (1959) International Covenant on Economic, Social and Cultural Rights, GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force 3 January 1976. Universal Declaration of Human Rights, GA res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) World Health Organization, Constitution (ratified 7 April 1948)

Amani Oakley and Neil Oakley, for plaintiffs (respondents). Jack D. Coop, for defendant (appellant).

[1] SWINTON J. : -- This is an appeal by the defendant, Her Majesty the Queen in Right of Ontario ("Ontario"), from the decision of Dyson J. dated May 21, 2002, dismissing, in part, Ontario's motion to strike out the plaintiffs' Amended Statement of Claim as disclosing no reasonable cause of action. Leave to appeal was granted by Then J. in a decision dated September 2, 2003.

Overview of the Case

[2] This action against Ontario concerns an infant, Effica Shameka Mitchell, who died while receiving care at the emergency department of the William Osler Health Centre in Etobicoke, Ontario. The child had been taken to the hospital because of [page575] repeated vomiting. She received treatment at the hospital over a four-hour period from various nurses and doctors. A separate action has been commenced against the doctors and the hospital.

[3] The plaintiffs (respondents) allege that Effica did not receive proper treatment quickly enough, and the overcrowded conditions at the hospital contributed to her death. They allege that these conditions were caused by the reductions in hospital funding and restructuring decisions of former Premier Michael Harris and former Minister of Health and Long Term Care, Elizabeth Witmer, as well as employees of the Ministry of Health and Long Term Care, for whose torts Ontario is vicariously liable. They claim that the wrongful funding and restructuring decisions are actionable as negligence, breach of contract, misfeasance, nonfeasance, abuse of public office and breach of fiduciary duty and are contrary to ss. 7 and 12 of the Canadian Charter of Rights and Freedoms.

[4] The motions judge struck out the breach of contract claim and the Charter claim. He also struck out the paragraphs alleging the intentional and/or reckless and bad faith use of policy and funding powers for political purposes. The plaintiffs did not appeal his decision. He did not strike out the allegations of negligence, misfeasance, nonfeasance, abuse of public office and breach of fiduciary duty.

[5] Ontario argues that the motions judge erred in failing to strike out the Statement of Claim, arguing that there is no reasonable cause of action in negligence, breach of fiduciary duty or abuse of public office.

The Test to be Applied

[6] On a motion to strike under rule 21.01(1)(b) [Rules of Civil Procedure, R.R.O. 1990, Reg. 194], the test is well established. Assuming that the facts as stated in the Statement of Claim can be proved, is it "plain and obvious" that the Statement of Claim discloses no reasonable cause of action (Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321 at p. 980 S.C.R.). The novelty of a claim is not grounds for dismissing the action. As well, the pleading should be read generously, with allowances made for drafting deficiencies (R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 2731 (ON CA), 5 O.R. (3d) 778, [1991] O.J. No. 1962 (C.A.) at p. 780 O.R.).

The Claim in Negligence

[7] The motions judge followed the ruling of the Alberta Court of Appeal in Decock v. Alberta, 2000 ABCA 122, [2000] A.J. No. 419, 186 D.L.R. (4th) 265 (C.A.) [page576] where the majority of that court refused to strike a nearly identical Statement of Claim, which made similar allegations of negligence against Premier Ralph Klein and the Alberta Minister of Health. There, the Premier and Minister were named defendants. The Supreme Court of Canada granted leave to appeal the decision, but the appeal was discontinued on September 10, 2001.

[8] Given the result in Decock, the motions judge concluded that it was not plain and obvious that the negligence claim would fail. The appellant argued that the motions judge erred in following Decock, because the case was decided before important decisions of the Supreme Court of Canada on the scope of the duty of care.

[9] The Supreme Court of Canada has made it clear that when determining whether a reasonable cause of action exists in negligence on the face 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, 206 D.L.R. (4th) 193; Edwards v. the Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, 206 D.L.R. (4th) 211; and Odhavji Estate v. Toronto (Metropolitan) Police Force, 2003 SCC 69, [2003] 3 S.C.R. 263, 233 D.L.R. (4th) 193). 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, [1977] 2 W.L.R. 1024 (H.L.) 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 reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved in the first stage of the Anns test focuses on 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)

[10] 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.

[11] The Supreme Court stated in Cooper that proximity is generally established by reference to categories, although the [page577] categories are not closed (at para. 31). The court then listed the categories in which proximity has been recognized, beginning with the following [at para. 36]:

First, of course, is the situation where the defendants' act foreseeably causes physical harm to the plaintiff or the plaintiff's property. This has been extended to nervous shock (see, for example, Alcock v. Chief Constable of the South Yorkshire Police, [1991] 4 All E.R. 907 (H.L.)). Yet other categories are liability for negligent misstatement: Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.) and misfeasance in public office. . . .

Other categories mentioned included a duty to warn of the risk of danger, a duty of municipalities to prospective purchasers of housing to inspect housing developments, and a duty of governmental bodies that have adopted a policy of road maintenance to execute that maintenance in a non-negligent manner.

[12] Finally, the court went on to speak of the policy considerations in the second stage of the test, noting that there is a distinction to be made between government policy decisions and operational decisions. The court stated clearly that government actors are not liable in negligence for policy decisions, although they may be liable for the manner in which policy is executed or carried out (at para. 38).

[13] In paras. 30, 32 and 34 of the Amended Statement of Claim, the plaintiffs plead that Premier Harris, Minister Witmer and the Ministry of Health and Long Term Care owed a duty to the plaintiffs to ensure that they were provided with services for reasonable and proper medical care, attention and treatment. They then go on in paras. 31(a) to (n), 33(a) to (o) and 35(a) to (o) to set out the acts of negligence and abuse of public office. The motions judge has struck out paras. 31(n) and 33(o).

[14] Paragraphs 30 and 31(a) to (m) are set out below.

30. The defendant's representative, Michael Harris, the Premier of Ontario at all material times, owed a duty to the plaintiffs to ensure that the plaintiffs were provided with services for reasonable and proper medical care, attention and treatment. Moreover, Michael Harris owed a duty to vulnerable Ontario residents, like Effica Mitchell, who require emergency life-saving, medically-necessary care, to ensure that she was provided with services for the reasonable and proper medical care, attention and treatment.

31. Further, and/or in the alternative, the aforesaid death, injuries and losses were caused solely and entirely or in part by the recklessness and negligence, nonfeasance, misfeasance, abuse of public office and/or breach of the fiduciary duty of the defendant's representative, Michael Harris, the particulars of which are as follows:

(a) in failing to adequately supervise: [page578]

i. the defendant's representatives, Elizabeth Witmer and the Ministry of Health and Long-term Care, as well as the William Osler Health Centre; and

ii. the operation of the Ministry of Health and Long-term Care and the William Osler Health Centre;

when he knew or ought to have known that his failure to do so would constitute a medical and safety hazard to members of the public like Effica Mitchell;

(b) in allowing, causing, or being willfully or recklessly blind, to the actions of the defendant's representative, Elizabeth Witmer, who breached her statutory duties, and in failing to prevent or rectify such breaches;

(c) in failing to provide reasonable and proper health care services to the residents of the Province of Ontario like Effica Mitchell;

(d) in failing to provide basic health care services to the residents of the Province of Ontario like Effica Mitchell;

(e) in failing to ensure that reasonable and proper health care and medical treatment were made available to the residents of the Province of Ontario like Effica Mitchell;

(f) in failing to provide, or cause to be provided to Effica Mitchell, reasonable and proper health care and medical treatment;

(g) in failing to ensure that the William Osler Health Centre was:

i. given sufficient funding and directions to ensure that it was staffed by sufficient and competent physicians, nurses and other agents and employees in reasonably adequate numbers;

ii. provided with reasonable and proper funding;

iii. provided with reasonable and proper equipment and medical supplies; and

iv. staffed with reasonable and competent administrative staff,

in order to provide reasonable and proper health care services and medical treatment to Effica Mitchell;

(h) in improperly, recklessly, and negligently encouraging, directing and approving the merger of Etobicoke General Hospital, Peel Memorial Hospital, and Georgetown Hospital into the William Osler Health Centre, when he knew or ought to have known that to do so would dangerously reduce, or fail to provide, adequate medical and emergency medical services for the residents of the Etobicoke General Hospital cachement area, like Effica Mitchell;

(i) in improperly, recklessly, and negligently closing hospitals or allowing hospitals to be closed in Ontario, despite a pledge to Ontario citizens that no hospitals would be closed, when he knew or ought to have known that to do so would dangerously reduce, or [page579] fail to provide, adequate [medical] and emergency medical services for the residents of Ontario, like Effica Mitchell;

(j) in improperly, recklessly, or negligently closing hospital emergency departments, or converting to them to urgent care departments, or allowing the emergency departments to be closed or converted to urgent care departments when he knew or ought to have known that to do so would dangerously reduce, or fail to provide, adequate medical and emergency medical services for the residents of Ontario, like Effica Mitchell;

(k) in improperly, recklessly, or negligently closing hospital beds in Ontario, despite the result being fewer beds in which to permit patients seen in emergency rooms, thus backing up emergency departments and dangerously lengthening the time for a patient to be treated, when he knew or ought to have known that to do so would dangerously reduce, or fail to provide, adequate medical and emergency services for the residents of Ontario, like Effica Mitchell;

(l) in improperly, recklessly, or negligently ignoring information that clearly showed Ontario's health care system was in serious decline as a result of the removal of health care funding and the restructuring of the health care system, when he knew or ought to have known that to do so would jeopardize the lives of the people of Ontario, like Effica Mitchell; and

(m) in failing to discharge the duty of care he owed to Effica Mitchell and the plaintiffs. . . .

[15] The pleadings against Ms. Witmer and Ministry employees are similar, although Ms. Witmer is also alleged to have breached her statutory duties under the Canada Health Act, R.S.C. 1985, c. C-6 to administer and operate, on a non-profit basis, a plan to provide basic health services to Ontario residents.

[16] Ontario argues that the facts pleaded in the Statement of Claim do not give rise to a private law duty of care. First, counsel submits that in applying the test in Cooper to the facts pleaded in the Statement of Claim, there is a real question as to whether the harm suffered by the plaintiffs was reasonably foreseeable to the Premier, the Minister of Health, or government employees. According to the pleading, Effica received attention from a number of nurses and doctors while at the hospital.

[17] In contrast, the respondents argue that the harm to Effica and her family was reasonably foreseeable, since Ontario had information about the problems in the health care sector caused by funding decisions and restructuring. They also argue that the motions judge made no error, since the decision in Decock, supra, demonstrates that it is not plain and obvious that the action in negligence will fail. [page580]

[18] In my view, the motions judge erred in failing to apply the jurisprudence of the Supreme Court of Canada with respect to the existence of a private law duty of care. While the plaintiffs have pleaded that there was a duty of care, it is clear from the decisions of the Supreme Court that the existence of a duty of care is a legal issue, and whether such a duty of care exists in law can be determined on a rule 21.01(1)(b) motion. While the Alberta Court of Appeal in Decock held that the issue of whether there was a duty of care should be left to trial (at para. 79), the Supreme Court of Canada has determined the existence of a private law duty of care on a motion to strike the Statement of Claim.

[19] Given the facts pleaded with respect to Effica's treatment at the hospital, it would seem that a reasonable person in the position of the Premier, Minister of Health or Ministry employees would expect such medical attention to result in effective treatment of the patient. However, it may be that the plaintiffs can show that it was reasonably foreseeable that injury to Effica would result because of delays in treatment caused by government funding and restructuring decisions. Even if that is the case, the plaintiffs have failed to plead any material facts which would give rise to a finding of the close and direct relationship between Ontario and the plaintiffs required by the proximity criterion. It is not alleged that the Premier, the Minister or any government employee knew the plaintiffs personally, knew of their circumstances, made any representations to them or participated in Effica's actual treatment.

[20] The plaintiffs argue that the relationship between them and the defendant falls within one of the categories in which a duty of care has been recognized -- namely, category 1, which is concerned with acts of a defendant which cause physical harm to the plaintiff. In Alcock v. Chief Constable of the South Yorkshire Police, [1991] 4 All E.R. 907, [1992] 1 A.C. 310 (H.L.), the case cited by the Supreme Court in Cooper, a local police force providing crowd control at a football game negligently allowed an excessive number of spectators to enter a section of the stadium, causing a crush that resulted in many deaths and injuries.

[21] It is not alleged here that the defendant, the Premier, the Minister or government employees directly caused physical harm to Effica, as in Alcock. Rather, the plaintiffs allege that the funding cuts and restructuring caused delay, which in turn was a cause of her death. This is not a case falling within category 1. [page581]

[22] Nor is it a case falling within the category "misfeasance in public office". To come within that category, the plaintiffs must allege the material facts to attract liability on the basis of this tort. For reasons set out later, the plaintiffs have no reasonable cause of action for malfeasance in public office. Nor is this case analogous to the road maintenance case, where government has made a policy decision with regard to maintenance and then owes a duty to carry out that policy in a non-negligent fashion. At most, there have been policy decisions here about funding and restructuring, but Ontario is not carrying the decisions out within the hospitals.

[23] Therefore, in this case, it must be determined whether a new duty of care should be recognized. The plaintiffs argue that this question should be determined by asking if it is "just and fair" to impose such a duty (Odhavji, supra, at para. 55).

[24] In answering that question in Cooper, Edwards and Odhavji, supra, the Supreme Court considered the statutory authority of the public official, asking whether it gave rise to a private law duty of care to the plaintiff. In this case, there are two governing statutes -- the Ministry of Health Act, R.S.O. 1990, c. M.26 ("MHA") and the Public Hospitals Act, R.S.O. 1990, c. P.40 ("PHA").

[25] The Ministry of Health Act establishes that the Minister of Health shall preside over and have charge of the Ministry and all its functions. It also sets out the functions and powers of the Minister in broad terms (ss. 3 and 6). These provisions show that the Minister has a public duty to "promote and assist in the development of adequate health resources, both human and material, in Ontario". Nothing in the Act gives the Premier or the Minister of Health or any Ministry official authority to supervise the day-to-day operations of a hospital or medical and nursing staff.

[26] The MHA also establishes an independent commission, the Health Services Restructuring Commission ("HSRC"), for a period of four years, with the duty to perform any duties and exercise any powers assigned to it by or under the MHA or any other Act with respect to the development, establishment, and maintenance of an effective and adequate health care system and the restructuring of health care services provided in Ontario communities, having regard to district health council reports (s. 8).

[27] The Public Hospitals Act establishes a regime for the organization and running of public hospitals in Ontario. It provides for a hospital-appointed administrator, who is an employee of the hospital, who has direct and actual superintendence and charge [page582] of the hospital, and for a hospital board. The Act empowers the Minister to fund a hospital "if the Minister considers it in the public interest to do so" (s. 5(1)). Section 9.1 defines "public interest" to include a number of factors, including "(c) the availability of financial resources for the management of the health care system and for the delivery of health care services". Section 6 of the PHA, as amended in 1996, also grants the Minister extensive powers to close or amalgamate public hospitals (Savings and Restructuring Act, 1996, S.O. 1996, c. 1, Sch. F, s. 6).

[28] Thus, the governing statutes make it clear that the Minister has a wide discretion to make policy decisions with respect to the funding of hospitals. The legislative framework gives the Minister the power to act in the public interest, and in exercising her powers, she must balance a myriad of competing interests. The terms of the legislation make it clear that her duty is to the public as a whole, not to a particular individual.

[29] Similarly, with respect to hospital restructuring, the Minister and the HSRC have a discretion to restructure hospital resources in Ontario. The only constraint upon the Minister is that she act in the public interest.

[30] Therefore, a consideration of the statutory framework makes it clear that the requisite proximity in the relationship between the plaintiffs and the defendant has not been established so as to give rise to a private law duty of care. The overall scheme of the relevant Acts confers a mandate on the Minister of Health to act in the broader public interest and does not create a duty of care to a particular patient. Similarly, any power over funding that the Premier might have is a power to be exercised in the public interest.

[31] The plaintiffs have also pleaded that the Premier and Minister failed to supervise the hospital adequately, and therefore, Ontario is liable for the injury suffered. However, these individuals do not have the power to engage in day-to-day supervision of hospitals. While s. 9 of the PHA grants the Lieutenant-Governor in Council a discretion, on the recommendation of the Minister, to take over the day-to-day operations of a hospital by appointing a hospital supervisor, there is no allegation in the Statement of Claim that this extraordinary step was taken. Therefore, Ontario has no direct supervisory relationship over the hospital in question, nor any statutory obligation to ensure that hospitals allocate their budgets or discharge their supervisory obligations in a particular manner.

[32] In my view, it is plain and obvious that the plaintiffs cannot succeed on the first branch of the test set out in Cooper. [page583] However, if I am wrong, and they could possibly establish a prima facie duty of care, it is plain and obvious that they can not succeed at the second stage of analysis. It is well established that government actors are not liable in negligence for policy decisions. In Just v. British Columbia, 1989 16 (SCC), [1989] 2 S.C.R. 1228, 64 D.L.R. (4th) 689, the court stated that, as a general rule, decisions regarding budgetary allocations for government entities are classified as policy decisions (at para. 29).

[33] A major aspect of the plaintiffs' case is an attack on the allocation of funding to health care and health care institutions. Such decisions are generally characterized as policy decisions. While the motions judge concluded that the allegations in the pleadings have an operational aspect to them, he did so without analyzing the governing statutory framework. Under the applicable legislation, Ontario does not make decisions with respect to the operations of hospitals, in the absence of an order for supervision. Rather, in matters concerning health care funding and hospital restructuring, the Minister and the government must make complex and difficult policy decisions based on a variety of considerations. As in Cooper and Edwards, because of overriding policy considerations, there should be no private law duty of care arising with respect to decisions affecting health care funding and hospital restructuring.

[34] The plaintiffs rely on decisions such as Mount Sinai Hospital Centre v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281 for the proposition that policy decisions are only protected from scrutiny when they are made in good faith. That case involved the judicial review of a decision of the Quebec Minister of Health. Similarly, Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 2001 21164 (ON CA), 56 O.R. (3d) 505, 208 D.L.R. (4th) 577 (C.A.) was a case of judicial review of government health restructuring decisions. These cases do not support the argument that a Minister or government body has a private law duty of care when exercising discretion.

[35] For these reasons, the motions judge erred in failing to strike out the claim in negligence, as it is plain and obvious that there is no private law duty of care, and, therefore, there is no reasonable cause of action in negligence.

Misfeasance in Public Office

[36] The plaintiffs also base their claim on misfeasance, nonfeasance and abuse of public office. Misfeasance and nonfeasance are not torts in and of themselves. Therefore, the issue is whether there is a reasonable cause of action for the tort of [page584]abuse of public office. The motions judge struck out certain paragraphs in the Amended Statement of Claim dealing with reckless use of political power to effect a two- tiered, privatized health care system, on the basis that they were non-justiciable "political screeds . . . more appropriately left to the rhetoric of the hustings and decisiveness of the ballot box". However, he failed to analyze the elements of the tort of abuse of public office, and so erred.

[37] The elements of the tort of abuse of public office were set out in the decision of the Supreme Court of Canada in Odhavji, supra, at paras. 22 and 23:

Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff. . . .

First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. What distinguishes one form of misfeasance in a public office from the other is the manner in which the plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to harm the plaintiff.

[38] Knowledge of unlawful conduct is key to a finding of liability for this tort. Therefore, in order to establish liability here, the plaintiffs will have to prove that Mr. Harris and Ms. Witmer or Ministry employees engaged in deliberate and unlawful conduct directed at the plaintiffs (Odhavji, at para. 24). Essential to a finding of liability is an element of bad faith or dishonesty (Odhavji, at para. 28).

[39] The first problem here is that neither Mr. Harris nor Ministry employees had statutory duties or powers with respect to funding, restructuring or appointing a supervisor for a hospital. Therefore, their actions can not fall within Category B above, as there is no basis to find that they exercised a statutory power unlawfully. Moreover, there is no pleading that they engaged in deliberate conduct aimed at the plaintiffs, as in Roncarelli v. Duplessis, 1959 50 (SCC), [1959] S.C.R. 121, 16 D.L.R. (2d) 689, so as to fall within category A. Therefore, it is plain and obvious that this tort claim must fail as it relates to their conduct. [page585]

[40] With respect to Ms. Witmer, there is again no pleading that she has deliberately exercised a statutory power in an unlawful manner. The statutes under which she acted, as described above, conferred a discretion. There is no pleading that she exercised that discretion so as to target the plaintiffs unlawfully. Any allegations of malice were struck by the motions judge, and no appeal was taken from that aspect of his decision.

[41] Moreover, at most the allegations against her are of negligence, not deliberate unlawful conduct. This is not sufficient to attract liability for abuse of public office. Nowhere have the plaintiffs pleaded the deliberate misconduct required to establish liability for this tort.

[42] The plaintiffs argue that Ms. Witmer had obligations to provide adequate funding under the Canada Health Act, R.S.C. 1985, c. C-6 which were breached. Section 3 of the Act sets out the primary objective of Canadian health care policy, but specifies no duties on a province. In my view, ss. 7 through 13 of that Act set out criteria for the provinces to meet in order to obtain federal government funding for medical care. The Act permits the federal government to impose financial sanctions if the province does not meet the criteria, but does not render unlawful the province's funding decisions with respect to health care (ss. 14-17). Moreover, there is no allegation in the Statement of Claim that the provincial health insurance plan is defective in any way under the Canada Health Act.

[43] The plaintiffs also made reference to a number of international instruments in argument: the Universal Declaration of Human Rights, GA res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948); the Constitution of the World Health Organization; the Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, USSR, 6-12 September 1978; the International Covenant on Economic, Social and Cultural Rights, GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force 3 January 1976; and the Declaration of the Rights of the Child, GA res. 1386 (XIV), 14 UN GAOR Supp. (No. 16) at 19, UN Doc. A/4354 (1959). None of these instruments is specifically pleaded, nor is there reference to any particular provisions in them. The plaintiffs appear to argue that Ontario acts unlawfully if it breaches the terms of these instruments, but it has not been established that these instruments contain obl igations which were binding on a provincial Premier or a Minister at the relevant times. Moreover, at most the plaintiffs seem to argue that these international obligations [page586] are factors which should have been considered in the exercise of discretion. If they were not properly considered, that might be grounds for judicial review, but excess of power or breach of statutory duty by a public official is not the same as the tort of abuse of public office. The requisite element of bad faith or dishonesty for that tort has not been pleaded or, where it was pleaded, has been struck out.

[44] In sum, it is plain and obvious that there is no reasonable cause of action for the tort of abuse of public office.

Breach of Fiduciary Duty

[45] In para. 29 of the Amended Statement of Claim, the plaintiffs allege a fiduciary duty on the part of Ontario in the following words:

In addition, or in the alternative, the Defendant owed a fiduciary duty to the Plaintiffs, the particulars of which include:

(i) the Plaintiffs' dependency upon the Queen in Right of Ontario, her representatives, employees, servants and agents, for the delivery of medically necessary services and emergency services;

(ii) the Defendant's scope for the exercise of some discretion in relation to way that medically necessary and emergency services are to be delivered in Ontario;

(iii) the ability of the Defendant to unilaterally exercise that discretion so as to affect the treatment of critically ill patients, like Effica Mitchell, in need of medically necessary and emergency services;

(iv) the Plaintiffs' vulnerability to the Defendant who held this discretionary power entirely within the Defendant's control;

(v) the Plaintiffs' reasonable expectation that they would receive timely medically necessary and emergency care; and,

(vi) the Plaintiffs' vulnerability to the Defendant as a result of the Defendants complete responsibility and control of the delivery of health care services in Ontario.

[46] Again, the motions judge failed to consider the [breach] of fiduciary duty claim in his reasons, which was an error on his part.

[47] In Hodgkinson v. Sims, 1994 70 (SCC), [1994] 3 S.C.R. 377, 117 D.L.R. (4th) 161, La Forest J. explained the indicia of a fiduciary relationship. At pp. 409-10 S.C.R., he stated,

In these cases, the question to ask is whether, given all the surrounding circumstances, one party could reasonably have expected that the other party would act in the former's best interests with respect to the subject matter at issue. Discretion, influence, vulnerability and trust were mentioned as non-exhaustive example of evidential factors to be considered in making this determination. [page587]

Thus, outside the established categories, what is required is evidence of a mutual understanding that one party has relinquished its own self-interest and agreed to act solely on behalf of the other party.

[48] No trustee-beneficiary relationship or agent-principal relationship was pleaded, nor could there be one as a matter of law. Moreover, the governing statutory regime makes it clear that there could not have been a duty on any Ontario representative to act in the best interests of the plaintiffs. Ms. Witmer's duty as Minister of Health was a general public duty to act in the interest of the public as a whole.

[49] In Guerin v. R., 1984 25 (SCC), [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321, the Supreme Court of Canada stated [at p. 385 S.C.R., p. 341 D.L.R.],

It should be noted that fiduciary duties generally arise only with regard to obligations originating in a private law context. Public law duties, the performance of which requires the exercise of discretion, do not typically give rise to a fiduciary relationship. As the "political trust" cases indicate, the Crown is not normally viewed as a fiduciary in the exercise of its legislative or administrative function.

[50] The Ontario Court of Appeal in Authorson v. Canada (Attorney General) (2002), 2002 23598 (ON CA), 58 O.R. (3d) 417, 215 D.L.R. (4th) 496 (C.A.) explained that the political trust cases involve public funds, rather than private funds, and issues with respect to distribution are to be dealt with in the political arena, not the courts (at para. 60). While the decision of the court was overturned on appeal, the issue of the Crown's fiduciary duty was not appealed (2003 SCC 39, [2003] 2 S.C.R. 40 at para. 8). In that case, the Crown was held to have a fiduciary duty to disabled war veterans in administering the pensions of those veterans. Each of the veterans had a property interest in the fund being administered.

[51] The plaintiffs here have no corresponding property interest in the funds of the province of Ontario which may be allocated for health care. The claim here is in the nature of a political trust. Concerns about the allocation of funds for health care are to be dealt with in the political arena, rather than in a civil action in the courts. Therefore, it is plain and obvious that the claim for breach of fiduciary duty will fail.

Conclusion

[52] For these reasons, the appeal is allowed. Paragraph 2 of the order of the motions judge is set aside, and the appellant's motion to strike the Amended Statement of Claim is granted. Given the nature of the claims here, the pleadings do not appear capable of amendment. Therefore, there is no leave to amend. [page588]

[53] If the parties can not agree with respect to costs, they may make brief written submissions within 30 days of the release of this decision.

Appeal allowed.