Laroza, Deceased, by her Personal Representative, Laroza, et al. v. Her Majesty the Queen in Right of Ontario [Indexed as: Laroza Estate v. Ontario]
95 O.R. (3d) 764
Court of Appeal for Ontario,
Sharpe, Juriansz and LaForme JJ.A.
May 7, 2009
Charter of Rights and Freedoms -- Fundamental justice -- Plaintiffs claiming that Ontario breached s. 7 of Charter by prematurely relaxing controls imposed during SARS outbreak -- Claim as pleaded failing to disclose viable claim for damages under s. 7 of Charter -- Canadian Charter of Rights and Freedoms, s. 7.
Torts -- Negligence -- Duty of care -- Ontario not owing private law duty of care to individuals who contracted SARS during outbreak in province.
The plaintiffs sued Ontario for damages suffered as a result of contracting SARS during the 2003 outbreak. The action was based on negligence, breach of statutory duty, conflict of interest and breach of s. 7 of the Canadian Charter of Rights and Freedoms. On a motion by Ontario under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the motion judge struck part of the statement of claim but refused to strike substantial parts of the negligence claim, the claim for conflict of interest and the Charter claim. Ontario appealed.
Held, the appeal should be allowed.
For the reasons given in Williams, it was plain and obvious that the allegations against Ontario did not give rise to a private law duty of care.
The claim for conflict of interest and the Charter claim were related; essentially, both claims were based on an allegedly premature relaxation of SARS controls because of concerns related to economic and tourism losses. For the reasons given in Albarquez, the claim as pleaded failed to disclose a viable claim for damages for breach of s. 7 of the Charter.
APPEAL from the order of Cullity J., [2005] O.J. No. 3506, [2005] O.T.C. 726 (S.C.J.) striking part of a statement of claim but refusing to strike the entire claim.
Cases referred to Abarquez v. Ontario, 2009), 95 O.R. (3d) 414, [2009] O.J. No. 1814, 2009 ONCA 374; Williams v. Canada (Attorney General), (2009), 95 O.R.(3d) 401, [2009] O.J. No. 1819, 2009 ONCA 378, apld Other cases referred to Eliopoulos (Litigation Trustee of) v. Ontario (Minister of Health and Long-Term Care) (2005), 2005 CanLII 18883 (ON SCDC), 76 O.R. (3d) 36, [2005] O.J. No. 2225, 198 O.A.C. 377, 139 A.C.W.S. (3d) 674 (Div. Ct.); Henry Estate v. Scarbrough Hospital û Grace Division, [2009] O.J. No. 1821, 2009 ONCA 375; Jamal Estate v. Scarborough Hospital û Grace Division (2009), 95 O.R. (3d) 760, [2009] O.J. No. 1822, 2009 ONCA 376; Statutes referred to Canadian Charter of Rights and Freedoms, s. 7 Family Law Act, R.S.O. 1990, c. F.3 Occupational Health and Safety Act, R.S.O. 1990, c. O.1 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 21 [as am.], 22 [as am.] [page765]
Lisa Miron, for plaintiff. Lise G. Favreau, Kim Twohig and Leslie McIntosh, for defendants.
The judgment of the court was delivered by
[1] SHARPE J.A.: -- This appeal, heard together with four other similar appeals, [See Note 1 below] raises the issue of whether Ontario can be held liable for damages suffered by individuals who contracted SARS during the outbreak of that illness in 2003.
[2] The respondent plaintiffs Nelia and Kenneth Laroza contracted SARS in May 2003. Nelia Laroza was a nurse employed at North York General Hospital. Kenneth Laroza was her son. This action against Ontario for damages arising from Nelia Laroza's illness and death from SARS, from Kenneth Laroza's illness, and for damages for loss of care and companionship by their family members pursuant to the Family Law Act, R.S.O. 1990, c. F.3 is based on negligence, breach of statutory duty, breach of fiduciary duty, conflict of interest and breach of s. 7 of the Canadian Charter of Rights and Freedoms.
[3] As in Williams, Albarquez and the other related appeals, Ontario moved under Rule 21 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] to strike out the amended statement of claim (the "claim") on the ground that the facts as pleaded did not establish that Ontario owed the plaintiffs a private law duty of care.
[4] The motion judge incorporated his reasons for decision in Williams and Albarquez and struck out the allegations of negligence that he found dealt with duties owed by Ontario to the public as a whole. However, relying on the decision of the [page766] Divisional Court in Eliopoulos (Litigation Trustee of) v. Ontario (Minister of Health and Long-Term Care) (2005), 2005 CanLII 18883 (ON SCDC), 76 O.R. (3d) 36, [2005] O.J. No. 2225 (Div. Ct.), he refused to strike out substantial parts of the negligence claim against Ontario. He struck the claims for breach of statutory duty and breach of fiduciary duty. However, relying on his reasons in Albarquez, he refused [to] strike the Charter claim and the claim for conflict of interest.
[5] The allegations of negligence made in this case are very similar to those made in Albarquez and in Williams and may be summarized as follows: -- failure to fund and have in place public health infrastructure, adequate resources, expertise, including effective public health systems, emergency response plans, disease information systems and adequate data collection methodology; -- failure to have any or adequate communications, or communications plans; -- failure to have any or adequate leadership and failing to coordinate and guide local health units; -- failure to enact legislation and failure to ensure the correct interpretation and understanding of legislation, failure to set guidelines regarding medical specialist qualifications; -- premature relaxation of the infection-control procedures that had been imposed on hospitals to limit the spread of SARS and directing attention to lifting the WHO travel advisory and the premature dismantling of the POC; -- failure to enforce the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 and other legislation, failure to investigate under the OHSA, failure to ensure compliance with Directives and occupational health and safety measures, including failure to conduct spot audits, provide equipment, instruct hospital staff and test equipment; and -- negligence in relying on an epidemiological link and failure to modify the definition for probable and suspect SARS, failure to provide for false-negative test results and failure to monitor staff for SARS symptoms.
[6] These allegations essentially rest on the proposition that Ontario owed the respondents a general duty of care to protect them from contracting SARS. For the reasons given in Williams and Albarquez, I conclude that as pleaded, it is plain and obvious [page767] that these allegations do not give rise to a private law duty of care. Accordingly, in addition to the paragraphs struck by the motion judge, I would strike paras. 78, 82, 84, 86, 88-89, 91-127 and 130 of the claim.
[7] The claim for "conflict of interest" and the Charter claim appear to be related. The conflict of interest allegation is that Ontario prematurely relaxed SARS controls because of concerns related to economic and tourism losses flowing from the WHO travel advisory. The claim under s. 7 of the Charter is based on the allegation that Ontario's
actions and inactions . . . were contrary to the principles of fundamental justice when in particular they ignored their legislated and ethical mandates; and when their actions and inactions breached their fiduciary duties to Ontarians and to Nelia Laroza and to Kenneth Laroza and when they acted in conflict with their own mandates and preferred to aggressively address the economic and tourist fallout of SARS
[8] For the reasons given in Albarquez, I find that as pleaded, the claim fails to disclose a viable claim for damages for breach of s. 7 of the Charter. Accordingly, in addition to the paragraphs struck out by the motion judge, I would strike paras. 128 and 131-35.
[9] In the result, I would allow Ontario's appeal and strike the claim as disclosing no cause of action. If the parties are unable to agree as to costs, we will receive brief written submissions, from Ontario within 15 days and from the respondents within ten days thereafter.
Appeal allowed.
Notes
Note 1: Williams v. Canada (Attorney General) (2009), 2009 ONCA 378, 95 O.R.(3d) 401, [2009] O.J. NO. 1819; Abarquez v. Ontario (2009), 2009 ONCA 374, 85 O.R. (3d) 414, [2009] O.J. No. 1814; Laroza Estate v. Ontario (2009), 95 O.R. (3d) 764, [2009] O.J. No. 1820; and Henry Estate v. Scarborough Hospital -- Grace Division, [2009] O.J. No. 1821,2009 ONCA 375. As the Williams appeal fell within the jurisdiction of this court and as it was in the interests of justice to have all appeals heard by the same court at the same time, the appeals that fell within the jurisdiction of the Divisional Court were, on consent, ordered to be heard by this court at the same time as the Williams appeal was a special case, pursuant to Rule 22. The judgments on all five appeals are being released at the same time.