The Estate of Heaslip, Deceased, et al. v. Mansfield Ski Club Inc. et al.

[Indexed as: Heaslip Estate v. Mansfield Ski Club Inc.]

96 O.R. (3d) 401

Court of Appeal for Ontario,

Sharpe, Watt and G.J. Epstein JJ.A.

July 28, 2009

Torts -- Negligence -- Duty of care -- Deceased suffering life-threatening injuries and dying while being transported to hospital by land ambulance -- Decision to transport deceased by land ambulance made when Medical Air Transport Centre advised that there would be two-hour wait for air ambulance -- Plaintiffs bringing negligence action against Ontario alleging that MATC failed to divert nearby air ambulance carrying patient with non-life-threatening injuries in accordance with its Manual of Operational Policy and Procedure -- Motion judge erring in striking out claim on basis that alleged facts failed to give rise to private law duty of care on part of Ontario -- Alleged duty of care falling within established category of public authority's negligent failure to act in accordance with established policy where it is reasonably foreseeable that failure to do so will cause physical harm to plaintiff -- Duty of care also arguably existing on basis that there was sufficiently close and direct relationship between deceased and Ontario that it was fair to require Ontario to be mindful of deceased's legitimate interests.

The deceased suffered life-threatening injuries in a tobogganing accident. One of his treating doctors requested an air ambulance to take the deceased to a Toronto hospital. The Medical Air Transport Centre (the "MATC"), which is operated by Ontario, advised that an air ambulance would not be available for two hours. The doctor cancelled the request and the deceased was placed in a land ambulance for transport to the Toronto hospital. He was pronounced dead less than an hour later. The deceased's estate and family members brought an action against Ontario in negligence. The claim alleged that there was a nearby air ambulance helicopter when the request for an air ambulance was made, that it was carrying a patient with non-life-threatening injuries, and that the MATC Manual of Operational Policy and Procedure provides for the reassignment of an air ambulance from an existing assignment to deal with a higher priority patient. A motion by Ontario for an order striking out the claim against it as disclosing no reasonable cause of action was granted. The motion judge found that the statement of claim failed to allege facts against Ontario giving rise to a private law duty of care. The plaintiffs appealed.

Held, the appeal should be allowed.

The motion judge erred by concluding that this case did not fall within an established category of negligence. The plaintiffs were alleging acts of negligence by Ontario in responding to a specific request for urgently required medical services and the negligent failure to comply with an established government policy, both of which were alleged to have caused harm to the deceased. The duty of care alleged in this case fell within the established category of a public authority's negligent failure to act in accordance with an established policy where it is reasonably foreseeable that failure to do so will cause physical harm to the plaintiff. Even if a full Cooper-Anns analysis was required, it was arguable that a duty of care should be recognized on the basis that there was a sufficiently close and direct relationship between the deceased and Ontario that, on the facts pleaded, it was fair to require Ontario to be mindful of the deceased's legitimate interests. [page402] It was alleged that Ontario was made aware of the deceased's life-threatening injuries and his urgent need for an air ambulance. It would be clear that a failure to respond appropriately to that request could cause the deceased serious harm. That gave rise to a situation where it was arguable that Ontario ought reasonably have had the deceased in mind as a person who could be harmed when it responded to the request for an air ambulance in the manner it did. The duty of care was not negated by residual policy concerns. Finally, the motion judge erred in characterizing the claim as implicating a policy decision as opposed to an operational decision.

APPEAL from the order of DiTomaso J., [2008] O.J. No. 4883, 62 C.C.L.T. (3d) 306 (S.C.J.) striking out a statement of claim.

Cases referred to

Attis v. Canada (Minister of Health) (2008), 93 O.R. (3d) 35, [2008] O.J. No. 3766, 2008 ONCA 660, 300 D.L.R. (4th) 415, 169 A.C.W.S. (3d) 684, distd Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 2001 SCC 79, 206 D.L.R. (4th) 193, 277 N.R. 113, [2002] 1 W.W.R. 221, J.E. 2001-2153, 160 B.C.A.C. 268, 96 B.C.L.R. (3d) 36, 8 C.C.L.T. (3d) 26, 110 A.C.W.S. (3d) 943; Eliopoulos (Litigation Trustee of) v. Ontario (Minister of Health and Long-Term Care) (2006), 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.); Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, 2007 SCC 41, 285 D.L.R. (4th) 620, 368 N.R. 1, J.E. 2007-1867, 230 O.A.C. 253, 64 Admin. L.R. (4th) 163, 50 C.C.L.T. (3d) 1, 50 C.R. (6th) 279, 40 M.P.L.R. (4th) 1, 160 A.C.W.S. (3d) 573, EYB 2007-124525; Just v. British Columbia, [1989] 2 S.C.R. 1228, [1989] S.C.J. No. 121, 64 D.L.R. (4th) 689, 103 N.R. 1, [1990] 1 W.W.R. 385, J.E. 90-18, 41 B.C.L.R. (2d) 350, 41 Admin. L.R. 161, 1 C.C.L.T. (2d) 1, 18 M.V.R. (2d) 1, 18 A.C.W.S. (3d) 527; Williams v. Canada (Attorney General) (2009), 95 O.R. (3d) 401, [2009] O.J. No. 1819, 2009 ONCA 378, 70 C.P.C. (6th) 213, 249 O.A.C. 150, 57 M.P.L.R. (4th) 164, consd

Other cases referred to

Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, [2004] S.C.J. No. 31, 2004 SCC 36, 240 D.L.R. (4th) 410, 321 N.R. 361, J.E. 2004-1254, 16 Admin. L.R. (4th) 165, 24 C.C.L.T. (3d) 1, 131 A.C.W.S. (3d) 543, REJB 2004-65746; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, J.E. 90-1436, 49 B.C.L.R. (2d) 273, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105, 23 A.C.W.S. (3d) 101; Sauer v. Canada (Attorney General), [2007] O.J. No. 2443, 2007 ONCA 454, 225 O.A.C. 143, 31 B.L.R. (4th) 20, 49 C.C.L.T. (3d) 161, 159 A.C.W.S. (3d) 306 (C.A.); Syl Apps Secure Treatment Centre v. B.D., [2007] 3 S.C.R. 83, [2007] S.C.J. No. 38, 2007 SCC 38, 284 D.L.R. (4th) 682, 365 N.R. 302, J.E. 2007-1512, 227 O.A.C. 161, 49 C.C.L.T. (3d) 1, 39 R.F.L. (6th) 245, 159 A.C.W.S. (3d) 464, EYB 2007-122390

Statutes referred to

Ambulance Act, R.S.O. 1990, c. A.19, s. 4(1) [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21 [as am.]

Adam Little, for appellants. Robert Ratcliffe, for respondent. [page403]

The judgment of the court was delivered by

[1] SHARPE J.A.: -- This is an appeal from an order striking out a claim against the respondent, the Province of Ontario, as disclosing no reasonable cause of action. The appellants' claim arises from the tragic death of Patrick Heaslip following a tobogganing accident. The appellants allege that Ontario was negligent because it failed to prioritize Patrick's medical needs and send or divert an air ambulance to transport him to a hospital capable of treating his injuries. The motion judge concluded that the statement of claim failed to allege facts against Ontario giving rise to a private law duty of care.

[2] For the following reasons, I would allow the appeal and permit the action against Ontario to proceed.

Facts

[3] As this appeal arises from a motion to strike the statement of claim, the facts alleged in the amended statement of claim (the "claim") must be taken as true.

[4] The claim alleges that Patrick Heaslip died on February 4, 2005, at the age of 17, as a result of injuries sustained in a tobogganing accident. The claim is brought by Patrick's family members and his estate. At about 6:00 p.m. on February 4, Patrick was tobogganing down a hill at the Mansfield Ski Club when his toboggan struck a steel snow-gun. He was thrown from the toboggan and collided with a tree. As a result, he suffered a right pneumothorax, a collapsed lung, a laceration through the lower right lobe of his right lung, numerous rib fractures compromising his right parietal pleura, pulmonary vascular congestion and edema. He was taken to the home where he was staying, and from there he was taken by land ambulance to Stevenson Memorial Hospital in Alliston, arriving there at around 7:55 p.m.

[5] At approximately 8:35 p.m., one of the defendant physicians, having assessed Patrick's injuries and the treatment he required, requested an air ambulance to take Patrick from Stevenson Memorial to St. Michael's Hospital in Toronto. At around 8:49 p.m., the Medical Air Transport Centre (the "MATC"), which is operated by Ontario, advised that an air ambulance would not be available for two hours. The doctor thereupon cancelled the request for an air ambulance.

[6] At approximately 10:01 p.m., a land ambulance carrying Patrick left Stevenson Memorial to take Patrick to St. Michael's Hospital. At 10:29 p.m., he was noted as having no vital signs. [page404] The ambulance was redirected to Southlake Regional Health Centre in Newmarket. Patrick was pronounced dead at 10:56 p.m.

[7] The claim alleges that there was an air ambulance helicopter near Stevenson Memorial when the request for an air ambulance was made and that it was carrying a patient with non- life-threatening injuries.

[8] The claim further alleges that the MATC Manual of Operational Policy and Procedure provides for the reassignment of an air ambulance from an existing assignment to deal with a higher priority patient, regardless of the stage of the existing assignment. It is further alleged that the MATC knew that Patrick's life-threatening medical condition had a higher priority response than the patient on board the air ambulance near Stevenson Memorial, but that the MATC failed to re-assign the air ambulance (thus failing to comply with their own manual of Operational Policy and Procedure) to take Patrick to St. Michael's Hospital. The claim also alleges that neither of Ontario's other two on-duty air ambulances were available. One was grounded because the pilot had reached the limit of his duty hours and the other was unavailable because it required maintenance.

[9] Paragraph 38 of the claim contains the following specific allegations of negligence against Ontario:

(a) they failed to appropriately triage Patrick Heaslip;

(a2) they failed to appropriately prioritize Patrick Heaslip's transfer, resulting in his death;

(b) they failed to appreciate the significance of Patrick Heaslip's symptoms and injuries;

(c) they failed to ensure the existence throughout Ontario of a balanced and integrated system of ambulance services and communication services used in dispatching ambulances;

(d) they failed to ensure the appropriate provision of air ambulance services;

(e) they failed to ensure that an appropriate number of air ambulance helicopters and pilots were available and on duty at the time of the incident;

(f) they failed to arrange for replacement air ambulance crews in a timely manner or at all;

(f2) they or their employees or agents failed to use reasonable care and attention in scheduling their air ambulance crews, thereby allowing a lapse in the provision of air ambulance services to occur;

(f3) they or their employees or agents allowed their air ambulance crews to reach or exceed their duty hours, without arranging for appropriate replacements, thereby allowing a lapse in the provision of air ambulance services to occur; [page405]

(f4) they or their employees or agents failed to extend their pilots' duty hours, thereby allowing a lapse in the provision of air ambulance services to occur;

(g) they failed to maintain properly or at all their air ambulances, allowing a lapse in the provision of appropriate air ambulance services to occur;

(h) they engaged incompetent or inexperienced employees, contractors or subcontractors;

(i) they failed to reassign or redirect an air ambulance when they knew or ought to have known it would lead to the death of Patrick Heaslip;

(i2) their employees or agents failed to comply with the MATC Manual of Operational Policy and Procedure, including any amendments or drafts thereto;

(i3) their employees or agents committed errors or omissions in the interpretation or application of the MATC Manual of Operational Policy and Procedure to Patrick Heaslip's care;

(i4) they failed to implement or comply with policies and procedures, and in particular failed to reassign an air ambulance to Patrick Heaslip's care, when they knew or ought to have known that such failure would result in serious harm or death;

(i5) they failed to use reasonable care and attention in carrying out policies and procedures;

(j) they failed to draft, employ, enforce or comply with policies or procedures to allow for the reassignment of an air ambulance in appropriate circumstances;

(j2) they or their agents or employees failed to establish or comply with standards for the management, operation and use of ambulance services;

(k) on the occasion in question, they used incompetent or inexperienced servants, agents or employees;

(k2) they failed to train or instruct their employees and agents, properly or at all;

(l) they breached their duty of care by failing to take reasonable efforts to see that Patrick Heaslip was urgently transferred to a regional trauma centre;

(m) their employees, agents and/or servants failed to contact a physician for further consultation or advice;

(n) they failed to recognize the urgency of Patrick Heaslip's situation;

(o) they failed to consult a physician or base hospital for consultation or support; and

(p) they created a situation of danger and emergency, which resulted in the death of Patrick Heaslip [page406]

Legislation

[10] The Ambulance Act, R.S.O. 1990, c. A.19, s. 4(1) (the "Act") sets out the duties and powers given to the Minister of Health in regard to ambulances:

4(1) The Minister has the duty and the power, (a) to ensure the existence throughout Ontario of a balanced and integrated system of ambulance services and communication services used in dispatching ambulances; (b) REPEALED: S.O. 1997, c. 30, Sch. A, s. 5 (2). (c) to establish, maintain and operate communication services, alone or in co-operation with others, and to fund such services; (d) to establish standards for the management, operation and use of ambulance services and to ensure compliance with those standards; (e) to monitor, inspect and evaluate ambulance services and investigate complaints respecting ambulance services; and (f) to fund and ensure the provision of air ambulance services. (Emphasis added)

Decision of the Motion Judge

[11] The motion judge identified the key issue as being whether, on the facts pleaded in the claim, it was arguable that Ontario owed Patrick Heaslip a private law duty of care in relation to the request for an air ambulance. He assessed the claim against the now familiar Cooper-Anns test, as articulated by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76.

[12] As Ontario conceded that on the facts pleaded, foreseeability was established, the motion judge focused on the issue of proximity. He concluded that the claim did not fall within an established category and that it was thus necessary to consider whether a new category of duty of care should be recognized in this case.

[13] He found that the claim should be characterized as a failure to act or nonfeasance in circumstances where there was no positive duty to act. He reviewed the provisions of the Act and, relying on Eliopoulos (Litigation Trustee of) v. Ontario (Minister of Health and Long-Term Care) (2006), 82 O.R. (3d) 321, [2006] O.J. No. 4400 (C.A.) ("Eliopoulos"), and Attis v. Canada (Minister of Health) (2008), 2008 ONCA 660, 93 O.R. (3d) 35, [2008] O.J. No. 3766 (C.A.) ("Attis"), concluded that the Act gave rise only to duties to the public at large. At para. 54, he said: [page407]

I find that the statutory scheme does not create any private law duty of care as between the Crown and Patrick. The Minister's duties are owed to the public at large, not to any individual member. Accordingly, there does not exist the necessary proximate relationship. The Minister is invested with the duty and power to ensure the existence throughout Ontario, for the public as a whole, of a balanced and integrated system of ambulance services and communication services used in dispatching ambulances. The Minister has the discretion to use that power for the benefit of the public as a whole in fulfilling the Minister's mandate. The overall scheme of the statute contemplates that the Minister's duty of care is not owed to individual members of the public but rather to the public as a whole in respect to the provision of air ambulance services. Those powers are not circumscribed by the Act in order to specify exactly how those air ambulance services are to be provided.

[14] The motion judge also considered the second stage of the Cooper-Anns test and held that, even if the appellants had made out a prima facie case for a duty of care, there were residual policy considerations that justified denying liability. He found that the imposition of a duty of care would give rise to the prospect of indeterminate liability. He also concluded that imposing a duty of care would have a chilling effect on Ontario in relation to the provision of air ambulance services, as a result of having to resolve conflicts between competing air ambulance requests. Finally, the motion judge found that the claim related to a policy decision, rather than an operational decision, and that any duty of care that may otherwise exist would be negated for that reason as well.

Issues

(1) Did the motion judge err by concluding that it was not arguable on the facts pleaded that Ontario owed Patrick Heaslip a private law duty of care? (2) Did the motion judge err in concluding that if any prima facie duty of care did arise it was negated by residual policy concerns?

Analysis

1. Did the motion judge err by concluding that it was not arguable on the facts pleaded that Ontario owed Patrick Heaslip a private law duty of care?

[15] In my view, the motion judge applied an unduly narrow interpretation of the test for proximity, especially in relation to a motion to dismiss the action at the pleading stage. [page408]

[16] While I agree that certain allegations contained in the claim assert purely public law duties and must be struck, the core of the claim advanced by the appellants is centred on a very specific set of facts that are alleged to have arisen when Ontario was asked to provide an air ambulance to carry Patrick Heaslip to a hospital capable of treating his injuries.

[17] The key allegations are that -- Ontario knew that Patrick Heaslip had suffered a life- threatening injury; -- A nearby air ambulance that could have taken Patrick Heaslip to an appropriate hospital was carrying another patient with non-life-threatening injuries; -- Ontario had adopted a policy for air ambulances that gave priority to those with life-threatening injuries, even if that meant diverting another patient; and -- Ontario negligently failed to follow that policy in relation to Patrick Heaslip.

[18] In my view, it is arguable that those facts, if proven, are capable of supporting the existence of a duty of care upon the province. This is so either on the basis that the claim alleges a duty of care that falls within an established category, or because the facts alleged bring Patrick Heaslip into a direct relationship with Ontario that is sufficiently proximate to satisfy the Cooper-Anns test for recognizing a new category of duty of care. As it is not "plain and obvious" that no duty of care arises, the claim against Ontario should not be dismissed at the pleading stage: see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, at para. 33.

[19] This case is distinguishable from cases like Cooper and Attis. In those cases, the plaintiffs suffered harm at the hands of a party involved in an activity subject to regulatory authority and then alleged negligence on the part of the governmental authority charged with the duty of regulating the activity that gave rise to the plaintiff's loss. Cooper and Attis hold that such plaintiffs have no direct relationship with the governmental authority and can assert no higher claim to a duty of care than any other member of the public.

[20] The claim asserted here does not rest solely upon a statute conferring regulatory powers, as in Cooper and Attis, but is focused instead on the specific interaction that took place between Patrick Heaslip and Ontario when the request for an air ambulance was made. In this case, the relationship between Patrick Heaslip [page409] and the governmental authority is direct, rather than being mediated by a party subject to the regulatory control of the governmental authority.

[21] The appellants allege acts of negligence in responding to a specific request for urgently required medical services and the negligent failure to comply with an established government policy, both of which are alleged to have caused harm to Patrick Heaslip. I agree with the appellants that the alleged facts in this case support the existence of a duty of care akin to the one identified in Attis, at para. 66: "once the government has direct communication or interaction with the individual in the operation or implementation of a policy, a duty of care may arise, particularly where the safety of the individual is at risk." (See, also, Sauer v. Canada (Attorney General), 2007 ONCA 454, [2007] O.J. No. 2443, 225 O.A.C. 143 (C.A.); Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, [2004] S.C.J. No. 31.) The duty of care alleged here belongs within the established category of a public authority's negligent failure to act in accordance with an established policy where it is reasonably foreseeable that failure to do so will cause physical harm to the plaintiff: see, e.g., Just v. British Columbia, [1989] 2 S.C.R. 1228, [1989] S.C.J. No. 121 ("Just").

[22] It follows, in my view, that the motion judge erred by concluding that this case did not fall within an established category of negligence.

[23] Even if a full Cooper-Anns analysis were required, in my view, it is arguable that a duty of care should be recognized on the basis that there was a sufficiently "close and direct" relationship between Patrick Heaslip and Ontario that, on the facts pleaded, it is fair to require Ontario to be mindful of the legitimate interests of Patrick: Cooper, at paras. 32-34.

[24] In Cooper, at para. 34, the Supreme Court explained that the evaluation of whether a relationship is sufficiently proximate to ground a duty of care entails a consideration of the

. . . expectations, representations, reliance, and the property or other interests involved. Essentially . . . factors that allow us to evaluate the closeness of the relationship between the plaintiff and the defendant and to determine whether it is just and fair having regard to that relationship to impose a duty of care . . .

[25] In Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, at para. 29, McLachlin C.J.C. stated:

The most basic factor upon which the proximity analysis fixes is whether there is a relationship between the alleged wrongdoer and the victim, usually described by the words "close and direct". This factor is not concerned with how intimate the plaintiff and defendant were or with their physical [page410] proximity, so much as with whether the actions of the alleged wrongdoer have a close or direct effect on the victim, such that the wrongdoer ought to have had the victim in mind as a person potentially harmed. [Emphasis in original]

[26] The facts alleged in the claim bring this case within the "close and direct" category identified in Cooper and Hill. It is alleged that Ontario was made aware of both Patrick Heaslip's life-threatening injuries and his urgent need for an air ambulance. It would be clear that a failure to respond appropriately to that request could cause Patrick serious harm. This gives rise to a situation where it is certainly arguable that Ontario ought reasonably to have had Patrick in mind as a person who could be harmed when it responded to the request for an air ambulance in the manner it did.

[27] Ontario argues that to recognize a duty of care would place the service provider in conflict with another person to whom a duty is already owed, namely, the individual being carried in the air ambulance when the request was made on Patrick Heaslip's behalf. Ontario submits that a duty of care should not be recognized due to this: Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, [2007] S.C.J. No. 38, at paras. 49-50, 55.

[28] I disagree. To negate a duty of care, "the conflict must be between the novel duty proposed and an 'overarching public duty', and it must pose a real potential for negative policy consequences": Hill, at para. 40. On the facts pleaded, Ontario itself has already determined how any potential conflict should be resolved: priority is to be given to those with life- threatening injuries. The complaint is that Ontario failed to follow its own policy, and I fail to see how Ontario can claim that following its own policy would "pose a real potential for negative policy consequences".

[29] Finally, I turn to the allegations contained in the claim that assert purely public law duties and that should be struck. To the extent that the appellants' claim rests on the proposition that Ontario had failed to devote adequate resources to the provision of air ambulances, those allegations fail for the same reason that the claims in Eliopoulos and Williams v. Canada (Attorney General) (2009), 95 O.R. (3d) 401, [2009] O.J. No. 1819, 2009 ONCA 378 ("Williams") failed. The plaintiffs in those cases each alleged that they had contracted an infectious disease as a result of the government's negligent failure to control the spread of the disease. In support of their arguments that the government owed them a duty of care in these cases, the plaintiffs could only point to the government's duty to the public at large to control the spread of infectious diseases. Claims of that nature [page411] alleging the government's failure to provide a service or adopt a certain policy are fundamentally different than a claim based upon the negligent failure to respond to a specific request for a service that is being provided under an established policy. As stated in Williams, at para. 33: "[h]ere, no facts are pleaded to suggest that the plaintiff had any direct contact or dealings with Ontario, and the allegations of negligence relate to the manner in which Ontario dealt with the risk SARS posed to the public at large".

[30] Counsel for the appellants did not dispute the contention that some of the allegations in the statement of claim must fail on this ground. In my view, paras. 38(c), (d), (e) and (f), the words "draft, employ" in para. 38(j) and the word "establish" in para. 38(j2), must be struck out for this reason.

[31] I conclude, accordingly, that with the exception of the allegations identified in the preceding paragraph, on the facts pleaded, it is arguable that there was sufficient proximity between Ontario and Patrick Heaslip to trigger a duty of care.

2. Did the motion judge err in concluding that if any prima facie duty of care did arise it was negated by residual policy concerns?

[32] It is also my view that, should a full Cooper-Anns analysis be required, the motion judge erred with respect to the second stage by concluding that any duty of care was negated by residual policy concerns.

[33] The motion judge's concerns regarding the risk of indeterminate liability suffers from the same difficulty as his duty of care analysis, namely, he failed to take into account the very specific nature of the claim. As I have indicated, I would strike the broad allegations complaining of the failure to provide an adequate system of air ambulance services. When stripped to its essentials, the allegation of specific acts of negligence in response to a specific request for air ambulance services, any risk of indeterminate liability evaporates.

[34] Likewise, the motion judge erred in characterizing the claim as implicating a policy decision as opposed to an operational decision. The facts pleaded bring this case within the category of operational negligence identified in Just, in which the Supreme Court held that where the government has made a policy decision to provide a service, a negligent failure to implement that policy at the operational level may be actionable when an individual member of the public suffers loss. [page412]

Conclusion

[35] Accordingly, I would allow the appeal and set aside the order of the motion judge dismissing the claim as against Ontario. In its place, I would substitute an order striking out subparas. 38(c), (d), (e) and (f), the words "draft, employ" in para. (j) and "establish" in para. (j2), but otherwise dismissing Ontario's Rule 21 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] motion.

[36] The appellants are entitled to their costs of the motion and of this appeal fixed at the total amount of $19,000, inclusive of disbursements and GST.

Appeal allowed.