Eliopoulos (Litigation Trustee of) v. Ontario (Minister of Health and Long Term Care)

76 O.R. (3d) 36

[2005] O.J. No. 2225

Court File No. 420/04

Ontario Superior Court of Justice

Divisional Court

Matlow, Jennings, Reilly JJ.

June 3, 2005

Civil procedure -- Pleadings -- Statement of claim -- Striking out -- Plaintiffs bringing action for damages arising from deceased's contracting of West Nile Virus -- Statement of claim alleging that defendant made policy decision to implement plan to reduce risk of West Nile Virus and then breached duty to carry out plan in non-negligent fashion -- Defendant moving to strike statement of claim as disclosing no reasonable cause of action -- Plaintiffs only required to demonstrate that it was not plain and obvious that they could not succeed -- Motion judge not required to determine as question of law that defendant owed duty of care to plaintiffs in order to allow matter to proceed to trial -- Motion judge properly concluding that Health Protection and Promotion Act conferred wide powers on government to make policy decisions and to make and implement operational decisions on basis of which it was possible to find private law duty of care -- Motion judge properly dismissing motion.

The plaintiffs brought an action for damages resulting from the contracting by the deceased plaintiff of West Nile Virus ("WNV"). The claims were based solely on allegations of negligence. The statement of claim alleged that the defendant decided to implement a Plan to reduce the risk of contracting WNV for Ontario residents, that the Plan was deficient in certain aspects, that the defendant was [page37] under a duty to implement the Plan, or ensure the Plan's implementation, in a reasonable and careful manner, and that the defendant failed to fulfill that duty. The defendant brought a motion pursuant to rule 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to strike the statement of claim as disclosing no reasonable cause of action. The motion was dismissed. The defendant appealed.

Held, the appeal should be dismissed.

The question for the motion judge was whether it was plain and obvious that the plaintiffs could not succeed. She was not required to determine as a question of law that the defendant owed a duty of care to the plaintiffs in order to allow the matter to proceed to trial. The motion judge recognized that it was at least reasonably arguable that the defendant owed a duty of care to the plaintiffs and that it would be dangerous to effectively terminate the pending action in circumstances where she was unable to conclude that the action was inevitably doomed to fail. She found that the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 confers wide powers on the government and local boards to make policy decisions and to make and implement operational decisions, sufficient to find a private law duty of care if the Anns test was met and if it could be held that the alleged negligent acts and omissions of the government arose as a result of the government implementing policy at the opera tional level. Her analysis and conclusion were correct.

APPEAL by the defendant from an order of Speigel J., [2004] O.J. No. 3035 (S.C.J.) dismissing a motion to strike a statement of claim.

Mitchell (Litigation Administrator of) v. Ontario (2004), 2004 4044 (ON SCDC), 71 O.R. (3d) 571, [2004] O.J. No. 3084 (Div. Ct.), distd Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01

Dennis Brown, Michele Smith and Lise Favreau, for appellant. R. Douglas Elliot, Patricia A. LeFebour, J. Amdam Dewar and Megan B. McPhee, for respondents.

The judgment of the court was delivered by

[1] MATLOW J.:-- This appeal is dismissed. Written submissions regarding costs may be exchanged by counsel and delivered to the court, in triplicate, within one month.

[2] This is an appeal by the defendant, brought with leave, from the order of Speigel J. dismissing a motion brought by the appellant pursuant to rule 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order striking out the respondents' statement of claim. Both the motion and the appeal before us were focused on rule 21.01(1)(b), which permits a party to apply to a judge for an order striking out a statement of claim on the ground that it discloses no reasonable cause of action. [page38]

[3] The statement of claim asserts claims for damages by the respondents resulting from the contracting of West Nile Virus ("WNV") by the deceased plaintiff, George Eliopoulos, in 2002. The claims are based solely on allegations of negligence made against the appellant which are set out in detail in paras. 34, 35, 36, 37, 37(a) and 38 of the statement of claim. The essence of those allegations includes the following:

(a) it had been known since 1999 that WNV was a threat in North America and that governments had a duty to develop and implement prevention plans in order to avoid a public health disaster;

(b) in May 2001, the appellant issued and decided to implement its West Nile Virus Surveillance and Prevention Plan (the "Plan") which was intended to reduce the risk of contracting WNV for Ontario residents;

(c) the Plan was deficient in certain aspects;

(d) the appellant was under a duty to implement the Plan, or ensure the Plan's implementation, in a reasonable and careful manner;

(e) the defendant failed to fulfill this duty;

(f) George Eliopoulos was bitten by a mosquito carrying WNV in or about September 2002. He was taken to a hospital on or about September 17, 2002, suffering from high fever and delirium. His condition was later diagnosed as viral encephalitis. About four weeks after his admission to hospital, his condition gradually improved and, on November 3, 2002, he was discharged. At the time of his illness, he was unaware of the defendant's role in public health and had no knowledge of the Crown's actions as they related to the outbreak of WNV in 2002;

(g) as a result of the appellant's negiligence, George Eliopoulos became extremely ill with WNV-induced encephalitis and eventually died;

(h) all of the respondents suffered pecuniary losses and some became entitled to assert derivative claims for damages.

[4] The appellant's attack on the statement of claim is based on its argument that, in law, it owed no duty of care to the respondents in the circumstances of this case and, in the absence of such a duty of care, no reasonable cause of action is alleged. [page39]

[5] In our consideration of this appeal, it is important to observe that we are now called upon here to review only the motion judge's conclusion regarding the adequacy of the statement of claim. What was before her was essentially the marking of a pleading to determine whether it met the minimum standard to secure a passing grade. The true facts, or even those intended to be proved, had nothing to do with the exercise. The Rules envisage that almost anything can be successfully pleaded by a plaintiff provided that, in its totality, it sets out a reasonable cause of action and otherwise complies with the Rules.

[6] Justice Speigel recognized this aspect of her function correctly in paras. 5 to 8, inclusive, of her reasons for judgment where she stated the following:

2. Rule 21 Motions

Under Rule 21.01(1)(b), any party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. In deciding whether or not to strike a pleading, the court must accept the facts alleged in the statement of claim as proven, unless they are patently ridiculous or incapable of proof. [See Note 2 below]

Note 2: Nash v. Ontario (1975), 1995 2934 (ON CA), 27 O.R. (3d) 1 (C.A.) at 6.

The Supreme Court of Canada in Hunt v. Carey [See Note 3 below] set out the test on Rule 21 motions as follows:

... assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.

Note 3: 1990 90 (SCC), [1990] 2 S.C.R. 959 at p. 980 [hereinafter Hunt].

The threshold for resisting a Rule 21 motion is quite low. The Supreme Court of Canada has held that a "germ" or "scintilla" of a cause of action will suffice to maintain the claim. [See Note 4 below]

Note 4: Operation Dismantle Inc. v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441 at 481.

The Supreme Court has likened Rule 21 to a mechanism for preventing abuses of process. In Hunt, supra, at 972, Wilson J. quoted from Dyson v. A.G. [See Note 5 below] with approval:

... the Court has a right to stop an action at this stage if it is wantonly brought without the shadow of an excuse, so that to permit the action to go through its ordinary stages up to trial would be to allow the defendant to be vexed under the form of legal process where there could not at any stage be any doubt that the action was baseless. But from this to the summary dismissal of actions because the judge in chambers does not think they will be successful in the end lies a wide region, and the Courts have properly [page40 ]considered that this power of arresting an action and deciding it without trial is one to be very sparingly used, and rarely, if ever, excepting in cases where the action is an abuse of legal procedure ... To my mind it is evident that our judicial system would never permit a plaintiff to be "driven from the judgment seat" in this way without any court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad.

Note 5: [1911] 1 K.B. 410 (C.A) at 418-419.

[7] She then went on to consider the appellant's argument relating to its failure to owe any duty of care to the respondents in paras. 9 to 12 of her reasons for judgment as follows:

The defendant argues that I must determine as a question of law that the defendant did owe a duty of care to the plaintiffs in order to allow the matter to proceed to trial. The plaintiffs submit that I need only find that it is not plain and obvious that the plaintiffs cannot succeed.

In my view, the plaintiffs have correctly formulated the test. Although a finding of a duty of care is a matter of law, at times a full factual record may be necessary in order to reach the correct conclusion in law. The absence of a full factual record that makes a conclusion on a point of law impossible on a Rule 21 motion should not stop the litigation in its tracks. It would be contrary to the purpose of a Rule 21 motion if the only thing that stops litigation is the absence of necessary facts. The purpose of trial is to bring facts to light and to enable the trial judge to make findings of fact and conclusions of law that require a factual record. Indeed, in Hunt, Wilson J. stated that complex matters involving substantive questions of law are most appropriately addressed at trial, where the parties present a full factual record on which they can argue the merits of the plaintiff's case. [See Note 6 below]

Note 6: Hunt, supra at 972.

I also note that this is not a motion for summary judgment. As Lang J. stated in George v. Harris, [See Note 7 below]

Questions as to the existence of a duty, the proximity of those injured, the scope of the duty, whether the breach was malfeasance or nonfeasance, and whether the direction was an operational or policy decision may become issues on a motion for summary judgment. In such a motion, the judge will have the advantage of some evidence to assist with the determination of these matters. Given the limited scope afforded by Rule 21, it is not appropriate to make those determinations at this stage.

Note 7: [1999] O.J. No. 639 (Gen. Div.) at para 37.

On the basis of this statement of law alone, I could dismiss the defendant's motion. However, I will continue the analysis.

[8] In my view, the motion judge was correct in her statements of the applicable law and in her applications of it to the pleading in issue. She recognized that it was at least reasonably arguable that the appellant owed a duty of care to the respondents and that it would be dangerous to effectively terminate the pending [page41 ]action in circumstances where she was unable to conclude that the action was inevitably doomed to fail.

[9] In paras. 18-23, inclusive, which are contained in the balance of the motion judge's reasons in which she discussed the duty of care issue, she highlighted some of the statutory authorities which she concluded could reasonably support the respondents' position, subject to the meeting of the Anns test, as follows:

a) Relevant Statutory Provisions

Section 86(1) of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 states:

86(1) if the Minister is of the opinion that a situation exists anywhere in Ontario that constitutes or may constitute a risk to the health of any person, he or she may investigate the situation and take such action as he considers appropriate to prevent, eliminate or decrease the risk.

Section 6(2) of the Ministry of Health and Long Term Care Act, R.S.O. 1990, c. M 26 states:

6(2) the Minister in exercising his or her powers in carrying out his or her duties under this Act

(b) shall promote and assist in the development of adequate health resources both human and material in Ontario.

Section 2 of the Health Protection and Promotion Act ("HPPA") reads:

2. The purpose of this Act is to provide for the organization and delivery of public health programs and services, the prevention of the spread of disease and the promotion and protection of the health of the people of Ontario.

Part VII of the HPPA contains many of the Minister's powers. Under sections 78 and 80, the Minister has the power to conduct investigations and to appoint inspectors to carry out the Act. Under sections 81 and 82, the Minister is required to appoint a Chief Medical Officer of Health and assessors.

The HPPA gives considerable power and responsibility to local boards of health and medical officers of health. The defendant submits that this indicates that it is the local boards, if anyone, who would be subject to duties under the Act. However, I find that it is apparent from the statutory scheme that the Minister retains control over the enforcement of the HPPA, either personally or through his delegates.

I find that the HPPA confers wide powers on the government and local boards to make policy decisions and to make and implement operational decisions, sufficient to find a private law duty of care if the Anns test is met and if it can be held that the alleged negligent acts and omissions of the government arose as a result of the government implementing policy at the operational level.

[10] I agree with this analysis and conclusion as well. [page42]

[11] Counsel for the appellant submitted we should follow the approach taken by this court in Mitchell (Litigation Administrator of) v. Ontario (2004), 2004 4044 (ON SCDC), 71 O.R. (3d) 571, [2004] O.J. No. 3084 (Div. Ct.). That too was an appeal of an order made pursuant to rule 21.01 dismissing a motion brought by Ontario for an order striking out the statement of claim as disclosing no reasonable cause of action. In that case the appeal was allowed and an order made striking out the statement of claim.

[12] Mitchell, however, must be confined to the allegations contained in its statement of claim which are significantly different from those in this case, and a comparison of the two pleadings will show why Mitchell must be distinguished. Mitchell involved a young person who died while receiving care at an emergency department of a hospital. The plaintiffs in that case pleaded that the deceased person did not receive proper treatment quickly enough and the overcrowded conditions at the hospital contributed to her death. They alleged that these conditions were caused by the reductions in hospital funding and restructuring decisions of the incumbent Premier and Minister of Health as well as other employees of the province for whose torts Ontario was vicariously liable.

[13] Justice Swinton, in her reasons for judgment on behalf of the court, set out several of the critical allegations contained, and not contained, in the statement of claim under review on which the court's decision rested. Some of them are as follows:

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.

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.

[14] In contrast, in the statement of claim in this action:

(a) it is alleged that the appellant caused physical harm to the deceased plaintiff;

(b) it is alleged that the appellant was negligent and that the appellant's negligence contributed to the death of the deceased plaintiff; [page43]

(c) it is alleged that the appellant made a policy decision with respect to implementing the Plan to reduce the risk of contracting WNV for Ontario residents and then breached its duty to carry out the Plan in a non-negligent fashion.

[15] It is noteworthy that, unlike in Mitchell, there is no allegation in the statement of claim that the respondents' claims are based in any way on the appellant's failure to provide adequate funding for any purpose whatsoever.

[16] Justice Swinton went on to observe [at p. 581 O.R.] that:

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).

[17] Unlike in Mitchell, it was not necessary for the motion judge to determine whether a new duty of care should be recognized. Nor is it necessary for us to do so. The respondents' claims, as pleaded, fall within the scope of a traditionally recognized category, namely, circumstances that disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care.

[18] Accordingly, in the circumstances of this case, Mitchell does not apply and the motion judge was correct in disposing of the motion before her as she did.

Appeal dismissed.