Jamal, Trustee of the Estate of Jamal, Deceased, et al. v. Scarborough Hospital -- Grace Division et al. [Indexed as: Jamal Estate v. Scarborough Hospital û Grace Division]

95 O.R. (3d) 760

Court of Appeal for Ontario,

Sharpe, Juriansz and LaForme JJ.A.

May 7, 2009

Torts -- Negligence -- Duty of care -- Ontario not owing private law duty of care to individuals who contracted SARS during outbreak in province.

The estate trustee and family members of a person who died after contracting SARS sued Ontario, alleging that it was negligent in failing to protect the deceased from the SARS virus. On a motion by the defendant 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 the entire claim. The defendant appealed.

Held, the appeal should be allowed.

For the reasons given in Williams, it was plain and obvious that Ontario did not owe the deceased a private law duty of care.

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 Williams v. Canada (Attorney General) (2009), 95 O.R.(3d) 401, [2009] O.J. No. 1819, 2009 ONCA 378, apld Other cases referred to Abarquez v. Ontario, (2009), 95 O.R. (3d) 414, [2009] O.J. No. 1814, 2009 ONCA 374; Eliopoulos (Litigation Trustee of) v. Ontario (Minister of Health and Long-Term Care) (2006), 2006 CanLII 37121 (ON CA), 82 O.R. (3d) 321, [2006] O.J. No. 4400, 276 D.L.R. (4th) 411, 217 O.A.C. 69, 43 C.C.L.T. (3d) 163, 35 C.P.C. (6th) 7, 152 A.C.W.S. (3d) 622 (C.A.), revg (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.) [Leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 514]; Henry Estate v. Scarborough Hospital û Grace Division, [2009] O.J. No. 1821, 2009 ONCA 375; Laroza Estate v. Ontario, (2009), 95 O.R. (3d) 764, [2009] O.J. No. 1820, 2009 ONCA 373 Statutes referred to Public Hospitals Act, R.S.O. 1990, c. P.40 [page761] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 21 [as am.], 22 [as am.]

Kate Cahill, for plaintiffs. 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] Karim Jamal contracted SARS in mid-March 2003 and died on April 30, 2003. This action, brought by his estate trustee and family members, names Ontario, three hospitals and several doctors as defendants. The claim alleges that Ontario was negligent by failing to protect Jamal from the SARS virus.

[3] As in Williams v. Canada (Attorney General) 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 "consolidated" 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 CanLII 18883 (ON SCDC), 76 O.R. (3d) 36, [2005] O.J. No. 2225 (Div. Ct.), [page762] 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 CanLII 37121 (ON CA), 82 O.R. (3d) 321, [2006] O.J. No. 4400 (C.A.) ("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 alleges that following a hospital visit, Karim Jamal contracted SARS on March 16 or March 17, 2003; was diagnosed with SARS on or about April 4, 2003; and that he died on April 30, 2003.

[8] As noted by the motion judge, the claim makes few explicit allegations of any actions of Ontario in connection with the SARS outbreak. The claim essentially rests upon general assertions that the Ministry of Health and Long-Term Care is responsible for administering the health care system and for the provision of health care services to the Ontario public, including the regulation of public hospitals and disease control and prevention and has regulatory powers over the establishment, maintenance and management of the defendant hospitals. The claim also alleges that the Ministry of Public Safety and Security is responsible for the creation, implementation and enforcement of protocols, regulations and or/procedures maintained for the protection of the public and that the Commissioner of Public Safety was responsible for establishing, coordinating and implementing public safety initiatives within the Province of Ontario.

[9] The claim fails to relate those general allegations to events that occurred during the SARS crisis. It does, however, contain certain particulars of Ontario's alleged negligence, conveniently summarized in Ontario's factum as follows: (i) failure to have any plan or any adequate plan to deal with SARS; (ii) failure to properly fund or staff hospitals to permit adequate monitoring, treatment and control of infectious diseases; (iii) failure to create information sharing and tracking system(s), for example, for daily surveillance of patients and hospital [page763] employees, and for communication between the provincial government and hospital employees, and between different levels of government; (iv) failure to provide proper or any leadership in directing the management of the outbreak of SARS, or to have created a provincial disease centre and failure to issue adequate directives to health care providers; (v) failure to provide adequate protective equipment to hospital employees and visitors; (vi) failure to enforce provincial mandates and protocols dealing with infectious diseases; (vii) failure to limit the use of quarantine methods and failure to prevent patients and hospital employees for re- entering the community; (viii) failure to warn members of the public; and (ix) breach of the requirements of the Public Hospitals Act, R.S.O. 1990, c. P.40.

[10] Ontario argues that the claim should have been struck out in its entirety because it fails to allege any material facts to support a claim in negligence. While I see considerable merit in that submission, I prefer to dispose of this appeal on substantive rather than procedural grounds.

[11] To the extent that the claim does allege facts against Ontario, the allegations add nothing to what was alleged in Williams. For the reasons given in Williams, I conclude that it is plain and obvious that Ontario did not owe Karim Jamal a private law duty of care and that the claim against Ontario should be struck out and the action against Ontario dismissed.

[12] Accordingly, I would allow Ontario's appeal and, as against Ontario, strike the claim in its entirety and dismiss the action.

[13] If the parties are unable to agree as to costs, we will receive brief written submissions, from Ontario within 15 days and from the respondent 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), 2009 ONCA 373, 95 O.R. (3d) 764, [2009] O.J. No. 1820; and Henry Estate v. Scarborough Hospital -- Grace Divison, [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.