Henry Estate v. The Scarborough Hospital
CITATION: Henry Estate v. The Scarborough Hospital, 2009 ONCA 375
DATE: 20090507
DOCKET: C48012
COURT OF APPEAL FOR ONTARIO
Sharpe, Juriansz and LaForme JJ.A.
BETWEEN:
Angela Henry, Executrix and Trustee of the Estate of Pheaneus Lloyd Henry, deceased and Angela Henry, personally
Plaintiff
and
Scarborough Hospital – Grace Division, Markham Stouffville Hospital, Her Majesty the Queen in Right of the Province of Ontario as represented by the Ministry of Health and long-term care, Her Majesty the Queen in Right of The Province of Ontario as represented by the Ministry of Public Safety and Security and Her Majesty the Queen in Right of the Province of Ontario
Defendants
Kate Cahill for the plaintiff
Lise G. Favreau, Kim Twohig and Leslie McIntosh for the Defendants
Heard: February 25, 2009
On appeal from the order of Justice Maurice Cullity of the Superior Court of Justice dated August 22, 2005
Reasons for Decision
Sharpe J.A.:
[1] This appeal, heard together with four other similar appeals,[^1] 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] Pheaneus Lloyd Henry contracted SARS in March 2003 from his daughter who worked at Scarborough Hospital – Grace Division. He was admitted to the Markham Stouffville Hospital on April 2, 2003 and he died there on May 25, 2003. His spouse brings this action as his estate trustee and in her own right pursuant to the Family Law Act, R.S.O. 1990 c.F.3 against Ontario and two hospitals alleging negligence.
[3] As in Williams v. Ontario and the other related appeals, Ontario moved under Rule 21 to strike out the 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 struck out those portions of the claim that he found dealt with duties owed by Ontario to the public as a whole. However, relying on the decision of the Divisional Court in Eliopoulos (Litigation Trustee of) v. Ontario (Minister of Health and Long-Term Care) (2005), 2005 18883 (ON SCDC), 76 O.R. (3d) 36, he refused to strike out substantial parts of the negligence claim against Ontario.
[5] As in the Williams and the other related appeals, Ontario relies on the reversal of the Divisional Court’s Eliopoulos judgment by this court, holding that while Ontario did owe a public law duty to promote health and protect against the spread of the West Nile virus, there was no relationship of proximity between the plaintiff and Ontario capable of giving rise to a private law duty of care: (2006), 2006 37121 (ON CA), 82 O.R. (3d) 321 (“Eliopoulos”) (leave to appeal denied: [2006] S.C.C.A. No. 514).
[6] As the underlying facts and issues raised on this appeal are essentially the same as those dealt with in Williams, I adopt the reasons given in Williams and will not repeat the background facts and legal analysis which is common to both appeals.
[7] The claim in this action essentially makes the same allegations of negligence as were made in the Jamal action. For the reasons given in Williams and Jamal, I would allow Ontario’s appeal, and as against Ontario, strike the claim in its entirety and dismiss the action.
[8] If the parties are unable to agree as to costs, we will receive brief written submissions, from Ontario within fifteen days and from the respondent within ten days thereafter.
“Robert J. Sharpe J.A.”
“I agree R.G. Juriansz J.A.”
“I agree H.S. LaForme J.A.”
RELEASED: May 7, 2009
[^1]: Williams v. Ontario; Abarquez v. Ontario (C48011); Laroza v. Ontario (C48010); and Jamal v. Ontario (C48013). 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 a special case, pursuant to Rule 22. The judgments all five appeals are being released at the same time.