Roe v. Leone et al. A.P. v. Leone et al. J.R. et al. v. Leone et al. [Indexed as: Roe v. Leone]
112 O.R. (3d) 584
2012 ONSC 6237
Ontario Superior Court of Justice,
Grace J.
November 2, 2012
Torts -- Negligence -- Duty of care -- Defendant having unprotected sex with plaintiffs without informing them that he was HIV positive -- Plaintiffs becoming infected with HIV -- Windsor Health Unit and Windsor police aware before defendant met plaintiffs that defendant was having unprotected sex with unsuspecting women -- Plaintiffs suing health unit and police for damages for negligence on basis that they failed to take steps to eliminate risk -- Health unit and police moving for summary judgment dismissing action -- Motion dismissed -- Issue of whether moving defendants owed plaintiffs private law duty of care should be determined at trial.
The defendant L learned that he was HIV positive in 1997. The Windsor Health Unit received information in 1998 indicating that L was having unprotected sex, and gave him a "letter of concern" requesting that he act responsibly. He refused to acknowledge the letter by signing it. The health unit took no further action. MW (who was not a party to the action) complained to the Windsor police in 2000 that she had contracted HIV from L and that he was having unprotected sexual intercourse with women without informing him that he was HIV positive. The report was assigned to the special services branch, but MW did not immediately co-operate. Later that year, she changed her mind, but a report indicating that she had contacted the police and wanted to co-operate was mistakenly sent to central records rather than to the special services branch. L subsequently had unprotected sexual intercourse with the plaintiffs, starting with the plaintiff Jane Roe in 2002. No criminal investigation was undertaken until one of the plaintiffs complained to the police in 2004. All four plaintiffs were infected with HIV. The plaintiffs sued the health unit and the Windsor police for damages for negligence, claiming that they were aware of the risk posed by L and failed to take steps to eliminate it. The health unit and the police brought a motion for summary judgment dismissing the action as against them.
Held, the motion should be dismissed. [page585]
The plaintiffs' relationship with the moving defendants did not fall into a settled category that case rise to a prima facie duty of care, so it was necessary to go on to consider whether the facts disclosed sufficient foreseeability and proximity to establish a duty of care. It was foreseeable that L would have unprotected sex with unsuspecting women and infect them. In the circumstances, the issue of proximity could not be decided on a summary judgment motion. The Health Protection and Promotion Act, R.S.O. 1990, c. H.7 and the Police Services Act, R.S.O. 1990, c. P.15 did not, on their own, create a private law duty of care in favour of a member of the public. Neither did they foreclose such a duty. The entire factual matrix had to be examined to determine whether it was just and fair to impose a duty of care upon the moving defendants.
MOTION for summary judgment dismissing the action as against the moving parties.
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No. 428, 2005 CarswellBC 413]; O'Rourke v. Schacht, 1974 CanLII 28 (SCC), [1976] 1 S.C.R. 53, [1974] S.C.J. No. 139, 55 D.L.R. (3d) 96, 3 N.R. 453; Project 360 Investments Ltd. v. Toronto Police Services Board, 2009 CanLII 36380 (ON SC), [2009] O.J. No. 2473 (S.C.J.); R. v. C. (D.), [2012] S.C.J. No. 48, 2012 SCC 48, 435 N.R. 118, 2012EXP-3545, J.E. 2012-1904, EYB 2012-212076; R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, [1998] S.C.J. No. 64, 162 D.L.R. (4th) 513, 229 N.R. 279, [1999] 4 W.W.R. 1, 111 B.C.A.C. 1, 57 B.C.L.R. (3d) 42, 127 C.C.C. (3d) 1, 18 C.R. (5th) 1, 39 W.C.B. (2d) 321; R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42, 308 B.C.A.C. 1, 419 N.R. 1, 2011EXP-2380, J.E. 2011-1326, 335 D.L.R. (4th) 513, 205 A.C.W.S. (3d) 92, 21 B.C.L.R. (5th) 215, 25 Admin. L.R. (5th) 1, 86 C.C.L.T. (3d) 1, [2011] 11 W.W.R. 215, 83 C.B.R. (5th) 169; R. v. Mabior, [2012] S.C.J. No. 47, 2012 SCC 47, 434 N.R. 341, 2012EXP-3544, J.E. 2012-1903, EYB 2012-212075, [2012] 11 W.W.R. 213; River Valley Poultry Farm Ltd. v. Canada (Attorney General) (2009), 95 O.R. (3d) 1, [2009] O.J. No. 1605, 2009 ONCA 326, 310 D.L.R. (4th) 152, 248 O.A.C. 222, 59 B.L.R. (4th) 44; Spencer v. Canada (Attorney General), [2010] N.S.J. No. 640, 2010 NSSC 446, 304 N.S.R. (2d) 1; Swinamer v. Nova Scotia (Attorney General), 1994 CanLII 122 (SCC), [1994] 1 S.C.R. 445, [1994] S.C.J. No. 21, 112 D.L.R. (4th) 18, 163 N.R. 291, J.E. 94-498, 129 N.S.R. (2d) 321, 20 Admin. L.R. (2d) 39, 19 C.C.L.T. (2d) 233, 2 M.V.R. (3d) 80, 46 A.C.W.S. (3d) 798; Syl Apps Secure Treatment Centre v. D. (B.), [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; Taylor v. Canada (Attorney General) (2012), 111 O.R. (3d) 161, [2012] O.J. No. 3208, 2012 ONCA 479, 95 C.C.L.T. (3d) 88; Thompson v. Saanich (District) Police Department, [2010] B.C.J. No. 1239, 2010 BCCA 308, 288 B.C.A.C. 233, 320 D.L.R. (4th) 496, 75 C.C.L.T. (3d) 183 [Leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 329, 2010 CarswellBC 3522]; [page587] Wellington v. Ontario (2011), 105 O.R. (3d) 81, [2011] O.J. No. 1615, 2011 ONCA 274, 277 O.A.C. 318, 81 C.C.L.T. (3d) 230, 333 D.L.R. (4th) 236; Whiteman v. Iamkhong, [2010] O.J. No. 966, 2010 ONSC 1456, 206 C.R.R. (2d) 187 (S.C.J.) Statutes referred to Health Protection and Promotion Act, R.S.O. 1990, c. H.7, ss. 2, 22 [as am.], 95 Police Services Act, R.S.O. 1990, c. P.15, ss. 1, 42(1)(b), 50(1) Authorities referred to Linden, Allen M., and Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham, Ont.: LexisNexis, 2011)
William Sasso, Craig Allen and Sharon Strosberg, for plaintiffs in all three actions. Alex Szalkai, for defendant Windsor Police Services Board. Brian McCall, for defendant Windsor-Essex County Health Unit.
GRACE J.: -- A. The Motions
[1] March 24, 1997 was a significant day for Carl Leone. He first learned and then disclosed to his parents very bad news. Testing revealed that Mr. Leone was HIV positive.
[2] Perhaps foreshadowing things to come, he declined to provide the names of previous sexual partners to the Windsor- Essex County Health Unit (the "Windsor Health Unit").
[3] None of the plaintiffs knew Mr. Leone then. In July 2002, that changed. Leone met 16-year-old Jane Roe. In less than a year, he also met J.R., M.M. and A.P. None knew of Leone's diagnosis. Unprotected sex infected all four women with HIV.
[4] In May 2004, A.P. learned that Leone was HIV positive. She complained to the Windsor police. An investigation immediately began. On June 6, 2004, Leone was arrested. Charges followed.
[5] In April 2007, [^1] Leone pled guilty to 15 counts of aggravated sexual assault. He is currently serving an 18-year sentence. [page588]
[6] In these actions, Jane Roe, J.R., J.M. and A.P. seek damages not only from Leone but also various members of his family. The plaintiffs also allege they are HIV positive and suffered damage as a result of negligence on the part of the Windsor Police Services Board ("Windsor Police") and the Windsor Health Unit.
[7] The particulars of negligence listed by the plaintiffs are far-ranging. At the risk of oversimplification, they allege that members of the Windsor Health Unit and Windsor Police knew Mr. Leone posed a risk to anyone who had an intimate relationship with him. They allege those defendants could have taken steps to eliminate the risk and failed to do so.
[8] The Windsor Police and the Windsor Health Unit maintain it is clear that no private law duty of care was owed to any of the plaintiffs. They move for summary judgment dismissing the plaintiffs' actions. [^2] These reasons deal only with the claims that relate to those two defendants.
[9] The parties agreed that issues such as standard of care, causation and damage could not be resolved on these motions. While some of the material filed related to standard of care, no submissions were made on that topic.
[10] These motions were to be heard in April 2012. Over the objection of the moving parties, they were adjourned. [^3] A January 6, 2013 pre-trial has been scheduled with trial to commence in March 2013. Counsel for the Windsor Health Unit submitted the fact those dates are approaching should play no part in my analysis. I agree. The moving parties' desire to extricate themselves from a long trial is understandable. They have been trying to do so for some time.
[11] Nonetheless and for the reasons that follow, I have concluded the interests of justice require a trial for the determination of the issue of whether the Windsor Health Unit and/or the Windsor Police owe the plaintiffs a private law duty of care. [page589] B. The Parties' Positions i. The position of the Windsor Health Unit and the Windsor Police
[12] Mr. Szalkai and Mr. McCall maintain there are no material facts in dispute. They acknowledge the evidence establishes the following.
[13] The Windsor Health Unit followed its standard protocol following Mr. Leone's diagnosis. He received counselling and consented to a referral to the HIV Care Program at Windsor's Metropolitan Hospital.
[14] In November 1998, the Windsor Health Unit received information from its client S.W. S.W. -- who is not a party to these proceedings -- had tested positive for gonorrhea and listed Mr. Leone as a sexual partner.
[15] The Windsor Health Unit relies on an affidavit of one of its lawyers. From her lawyer's chair, Jennifer Stirton describes the next steps:
This information was received by Ms. Chapman and a meeting was set up with Leone, Ms. Bennett and Ms. Chapman on December 31, 1998. At this meeting, Leone was given a document about the allegations that he was having unprotected sex after being diagnosed with HIV and advising him to use condoms and to disclose his HIV status to his partners prior to sexual activity. [^4]
[16] The Windsor Health Unit's December 31, 1998 letter was appended as an exhibit. In part it read:
To: Mr. Carl Leone
It is understood that,
a) Based on the results of medical and laboratory examinations, you are infected with the agent (Human Immune-deficiency Virus) of a communicable disease, namely Acquired Immune Deficiency Syndrome; and
b) You have continued to engage in sexual activity since becoming infected; and
c) Acquired Immune Deficiency Syndrome is spread to other persons by such sexual activity and needle sharing; and
d) Your behaviour presents and has presented a risk to the health of persons in the community. [page590]
We are requesting, 1. That you do not engage in any sexual acts that involve any penile penetration . . . unless a latex condom is used; . . . . . 3. To (sic) inform current and any future partners of your HIV status prior to . . . intercourse . . .
[17] Mr. Leone was asked to acknowledge, in writing, reading and understanding the letter. He refused.
[18] A few days later, Mr. Leone attended at the Windsor Health Unit with his girlfriend M.W. M.W. was then unaware of Mr. Leone's diagnosis. They had engaged in unprotected sex. M.W. was tested for sexually transmitted diseases, including HIV. In late January 1999, M.W. located Mr. Leone's HIV testing card at the residence they shared. Fortunately, her test results were negative.
[19] According to Ms. Stirton, nothing of note occurred for a year. She acknowledges the Windsor Health Unit "received information from a person who named Leone as a sexual contact" on January 25, 2000. [^5] Ms. Stirton's affidavit provides no further details with respect to that event or its aftermath beyond saying that the Windsor Health Unit's file evidences no further mention of or dealings with Mr. Leone until May 27, 2004.
[20] Before May 2004, the Windsor Health Unit had no dealings with any of the plaintiffs except Jane Roe. Ms. Roe's attendance at the Windsor Health Unit for testing occurred during her involvement with Mr. Leone but she did not mention Mr. Leone's name until after his arrest.
[21] On May 5, 2004, A.P. attended at the Windsor Health Unit for HIV and other testing having learned of Mr. Leone's status from a third party. Her complaint was the catalyst for the investigation and criminal charges which followed.
[22] The Windsor Police had started to investigate Mr. Leone before. On January 23, 2000, two police officers responded to a domestic dispute involving Mr. Leone and M.W. The incident occurred almost a year after the couple had visited the Windsor Health Unit.
[23] The investigation report prepared that day said, in part:
[M.W.] continued to state that she had contracted HIV from Leone. Leone was the only male she has been with since 17 yrs. of age . . . [M.W.] speculates that Leone caught HIV from a Thiland (sic) stripper . . . [M.W.] also alleges that Leone is still having intercourse with females unprotected and [page591] does not informed (sic) them that he is HIV positive. [M.W.] believes Leone is in denial about his condition. . . . . .
Follow up: contact Windsor-Essex Health Unit . . . . .
Leone was not contacted in order to confirm the HIV allegation. The Aggravated Assault charge refers to the unprotected sex with other females when he is aware of his HIV condition and does not inform other partners.
[24] The report was sent to the special services branch of the Windsor Police and Detective Laurel Boots was assigned to investigate M.W.'s allegations.
[25] An affidavit of Deputy Chief Jerome Brannagan of the Windsor Police was filed. He explained the investigation in these terms.
Although [M.W.] alleged that Leone infected her with HIV she did not press charges against him, did not meet with a Windsor police officer and did not give a written statement to the [Windsor Police Service][.] . . . . .
The [Windsor Police Service] required proof that [M.W.] was HIV+ but information from the Windsor-Essex Health Unit about [M.W.'s] HIV status could not be obtained . . . without her consent which she did not provide.
On the information in the Leone investigation file there was no basis for obtaining a search warrant for production of Carl Leone's file from the Windsor-Essex County Health Unit file (sic).
[26] In fact, Detective Boots spoke to M.W. M.W. provided certain information, including the names of two other women alleged to have been Mr. Leone's sexual partners. Detective Boots tried unsuccessfully to locate them.
[27] On April 7, 2000, Detective Boots interviewed Mr. Leone. She told him about the allegations. Detective Boots testified that Mr. Leone advised her that he had attended to listen, not answer questions. [^6] Detective Boots requested permission to contact the Windsor Health Unit. Mr. Leone refused.
[28] The investigation stalled. Deputy Chief Brannagan's affidavit describes a subsequent development. On September 24, 2000, M.W. called the Windsor Police. A report was prepared. It stated "that she wanted to co-operate". In his affidavit, Deputy Chief Brannagan said: [page592]
The report was in error sent to Central Records instead of [the special services branch] for further investigation. No further call was received by the [Windsor Police Service] from a [M.W.].
The investigation by the Windsor Police Service into the allegations made by [M.W.] about Carl Leone's behaviour did not disclose the name of any of the plaintiffs and the [Windsor Police Service] did not have any contact from any of them until Carl Leone's arrest in June 2004. [^7]
[29] The moving parties submit these facts evidence the hopelessness of the claims of negligence made against them.
[30] They argue that a trial is not required for me to conclude that an essential element of negligence -- a duty of care -- is absent.
[31] The Windsor Police maintain that the plaintiffs' assertion that a duty of care was owed to them is unsustainable in law. [^8] In Wellington v. Ontario, Sharpe J.A. wrote:
While the police owe a duty of care to a particular suspect under investigation . . . and to warn a narrow and distinct group of potential victims of a specific threat . . . there is now a long list of decisions rejecting the proposition that the police owe victims of crime and their families a private law duty of care in relation to the investigation of alleged crimes[.] [^9] (Citations omitted)
[32] Mr. Szalkai observed that the reference to a duty "to warn a narrow and distinct group of potential victims of a specific threat" arises from Jane Doe v. Toronto (Metropolitan) Commissioners of Police ("Jane Doe"). [^10] He maintains Jane Doe is anomalous and narrow. He argues these cases are clearly distinguishable. [page593]
[33] Mr. McCall made a similar argument. He relies heavily on three decisions of the Court of Appeal released in the last six years. In all of them pleadings filed on behalf of persons directly or indirectly affected by the West Nile virus or SARS were struck and their actions dismissed. [^11]
[34] In Abarquez v. Ontario, Sharpe J.A. wrote:
. . . while Ontario is obliged to protect the public at large from the spread of communicable diseases such as West Nile Virus and SARS, Ontario does not owe . . . individual residents of the province who contract such diseases a private law duty of care giving rise [to] claims for damages. [^12]
[35] The Windsor Health Unit maintains these actions are factually similar to those decisions. They note the plaintiffs rely on the same statute: the HPPA. However, the Court of Appeal has concluded its provisions do not create a private law duty of care. Mr. McCall acknowledged that the statute did not negate a duty of care if the interactions between the public authority and the claimant were sufficiently close. However, he submits the Windsor Health Unit's absence of contact with three of the plaintiffs and unrelated contact with the fourth is fatal to their claim.
[36] In sum, the moving parties argue that the issue -- whether a private law duty of care exists -- and an appreciation of all of the facts and law relevant to its determination are achieved from a review of the written record. They submit the actions founder at the proximity stage of what has become known as the Anns/Cooper test.
[37] They also raise a technical point. The moving parties maintain that the pleadings filed on behalf of the plaintiffs are fatally deficient because they make no allegation of proximity. ii. The position of the plaintiffs
[38] Mr. Sasso argued the motions for summary judgment are flawed, not the actions.
[39] He acknowledged the plaintiffs must establish the existence of a duty of care but takes issue with the moving parties' submission that the plaintiffs are unable to do so. [page594]
[40] Mr. Sasso submitted that caution at the summary judgment stage is the lesson Combined Air Mechanical Services Inc. v. Flesch ("Combined Air") provides. [^13] The rules relating to summary judgment are intended to eliminate unnecessary trials. Mr. Sasso submits these cases do not fit within that category as evidenced by decisions analyzing the circumstances in which a duty of care arises.
[41] Mr. Sasso relies heavily on Jane Doe. He maintains it is an important case because it provides a practical illustration of the application of two clearly articulated and established legal principles. First, proximity does not require physical contact between the plaintiff and defendant but arises whenever the defendant knows people in the plaintiffs' position would be directly affected by a negligent act. [^14] Second, determination of the issue involves a detailed factual analysis. In Cooper v. Hobart, McLachlin C.J.C. and Major J. wrote:
The factors which may satisfy the requirement of proximity are diverse and depend on the circumstances of the case. One searches in vain for a single unifying characteristic. [^15]
[42] Mr. Sasso argues the Windsor Health Unit knew that it was dealing with a person who posed "a serious and ongoing risk . . . to a definable group" based on interactions with Mr. Leone and other clients. [^16]
[43] Among the pieces of evidence relied upon is the transcript of the examination of Mary Lou Chapman. The former employee of the Windsor Health Unit answered affirmatively when asked if she knew Mr. Leone was "potentially a high risk problem" based on lifestyle, number of partners and sexual practices. [^17] [page595]
[44] Mr. Sasso also relied on excerpts drawn from the transcripts of the examinations for discovery of Deborah Anne Bennett and Dr. George Allan Heimann, respectively the director of communicable disease and chief executive officer of the Windsor Health Unit. He argued they support several conclusions.
[45] First, that the Windsor Health Unit knew that Mr. Leone was uncooperative from the outset.
[46] Second, that reliable information was received intermittently which proved Mr. Leone was having unprotected sex with women who did not know he was HIV positive.
[47] Third, that the Windsor Health Unit made a conscious decision to treat Mr. Leone differently than the person from whom he had contracted the HIV virus. In August 1997, the Windsor Health Unit issued an order under s. 22 of the HPPA to Mr. Leone's partner Anna. [^18] However, Dr. Heimann did not make a similar order with respect to Mr. Leone despite Ms. Bennett's belief one would be issued. [^19]
[48] Instead, and as already mentioned, Mr. Leone was given a letter of concern dated December 31, 1998 which requested, but did not require, that he act responsibly. Rather than react negatively when Mr. Leone refused to endorse his acknowledgement on the base of the letter, the Windsor Health Unit did nothing.
[49] Fourth, despite receiving more information of sexual improprieties a few days later and then again in the succeeding year, the Windsor Health Unit continued to be passive.
[50] Mr. Sasso concludes that Ms. Chapman was prophetic when she said "to [Deb Bennett] from day one" that "he's going to come back and get you". [^20]
[51] He submits the Windsor Police were in no different position. The note of M.W.'s September 24, 2000 call provided in part:
Sir: Writer was working kiosk . . . when I received a phone call from a female party who identified herself as [M.W.]. She claimed to be calling from Texas . . . and advised that someone from the Windsor Police had made many attempts to contact her several months ago regarding a complaint she had made that Carl Leone . . . was intentionally spreading the AIDS virus. [page596]
She admits that she chose not to respond the those enquiries, but says that she now wishes to assist police in stopping Leone from infecting more people, because of counseling she has been taking. She does not recall the names of any officers that left messages for her. (Emphasis in original)
[52] The memo included M.W.'s telephone number and was intended for the special services branch. As noted, the memo was not given to Detective Boots. For some reason, it was sent to central records and placed in a closed file. It was not acted upon.
[53] When examined for discovery, Detective Boots confirmed she would have reactivated the investigation had the summary of M.W.'s call been given to her. [^21] The plaintiffs maintain that investigation would have confirmed Mr. Leone's criminal behaviour with the same -- but earlier -- consequences that followed in June 2004: Mr. Leone's arrest, the laying of charges, conviction and imprisonment. They allege Mr. Leone would not have had an opportunity to victimize the plaintiffs.
[54] Mr. Sasso submitted these facts create the required "proximity" as evidenced by Jane Doe and other authorities. [^22] However, Mr. Sasso does not ask me to conclude a duty of care was owed. Instead, he asks me to find that the issue is one requiring a trial for its just determination.
[55] With respect to the technical point, Mr. Sasso says simply a review of the pleadings leads to the conclusion all of the constituent elements of negligence have been pleaded: a duty of care, a breach of the applicable standard and resulting damage. C. The Test for Summary Judgment
[56] All counsel referred to Combined Air. [^23] On behalf of the moving parties, Mr. Szalkai and Mr. McCall submit these cases fit within the third category identified by the Court of Appeal. They argue the actions can be dealt with on the merits because the trial process is not required in the interest of justice.
[57] In Combined Air, motion judges were directed to pose and answer the following question: can the full appreciation of the [page597] evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial? [^24]
[58] Familiarity and full appreciation are not synonymous. A final determination is only appropriate if the judge
. . . can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words and without the assistance of counsel as the judge examines the record in chambers. [^25]
[59] The moving parties maintain the record they compiled allows me to perform that task. D. The Evidentiary Record
[60] While the material before me was substantial, approximately half consisted of facta and six volumes of authorities.
[61] The plaintiffs filed five volumes of transcripts. They contain the examinations for discovery of representatives of the defendants: Detective Boots and Deputy Chief Brannagan on behalf of the Windsor Police Service and Ms. Bennett and Dr. Heimann on behalf of the Windsor Health Unit. The plaintiffs also examined one of its former public health nurses, Ms. Chapman. The parties agreed cross-examinations on the affidavits or other pre-motion examinations were unnecessary given the scope of the examinations for discovery.
[62] The plaintiffs also provided a compendium containing excerpts from some of those examinations, excerpts from the examinations for discovery of the plaintiffs and some of the documents to which the witnesses referred.
[63] After culling duplicative material, three volumes remained. As noted, the Windsor Police rely on an affidavit of Deputy Chief Brannagan. The Windsor Health Unit filed affidavits of Ms. Stirton and Dr. Heimann. These volumes also include the exhibits to which each deponent referred.
[64] The plaintiffs filed affidavits of Terry Levi Hall, a retired Ontario Provincial Police detective inspector and Dr. Richard Schabas, medical officer of health for the Hastings and Prince Edward Counties Board of Health and a small number of appended exhibits. [page598] E. Analysis and Decision
[65] It is undisputed that Mr. Leone failed to inform the plaintiffs that he was HIV positive and infected them.
[66] The issue is whether the Windsor Health Unit and/or the Windsor Police bear any legal responsibility.
[67] As noted, the plaintiffs allege negligence. Their factum provides a concise summary of their complaint against the moving parties. Insofar as the Windsor Health Unit is concerned, the plaintiffs allege
. . . the Health Unit knew that [Mr. Leone] had committed aggravated sexual assaults, was sexually active and would likely continue to commit aggravated sexual assaults. With that knowledge, the Health Unit did nothing to advise the law enforcement authorities, to warn [Mr. Leone's] sex partners or otherwise prevent [Mr. Leone] from endangering the health and lives of those and other victims. [^26]
[68] With respect to the Windsor Police, the plaintiffs allege:
The [Windsor Police] received complaints that [Mr. Leone] was spreading AIDS/HIV, but conducted no meaningful investigation. One such complaint received on September 24, 2000 was duly recorded and negligently filed away without being brought to the attention of [Mr. Leone's] investigating officer . . .
Predictably and tragically, [Mr. Leone] continued his criminal misconduct . . . and infected each of [the plaintiffs] with HIV. [^27]
[69] The parties agree a private citizen cannot pursue an action in negligence against a public authority unless they establish the existence of a private law duty of care in their favour.
[70] Two steps are involved in determining whether the plaintiffs have met that onus. Recently, the Court of Appeal summarized the Anns/Cooper test:
. . . there are two stages to the duty of care inquiry. The first stage is directed at the specifics of the individual case and decides whether the relationship between the plaintiff and the defendant justifies the imposition of a prima facie duty of care. The second stage of the inquiry, reached only if a prima facie duty of care is found, looks beyond the specific of the case to broader residual policy concerns and asks whether those concerns justify the negation of the prima facie duty of care. [^28]
[71] In some circumstances, the analysis may be shortened. If a case is very similar to one in which a duty of care has been [page599] recognized, the inquiry moves to the second stage. [^29] As Doherty J.A. wrote in Taylor v. Canada:
At the first stage of the inquiry, the court begins by asking whether the claim advanced describes a relationship that is the same as or analogous to a relationship that courts have previously recognized as giving rise to a prima facie duty of care. If the relationship fits within that description, the court, in the interests of consistency and efficiency, will assume a prima facie duty of care and move directly to the second stage of the duty of care inquiry. [^30]
[72] Frequently cited examples involving private citizens include the duty of care owed by motorists to others using a roadway, a health professional to a patient or a lawyer to a client. [^31] Those concerning public authorities include cases involving building inspection [^32] or road maintenance. [^33]
[73] The first question is this: does the plaintiffs' relationship with the Windsor Health Unit and/or the Windsor Police fall within a settled category that gives rise to a duty of care?
[74] The plaintiffs allege it does. The moving parties maintain the opposite is true: that these actions fit within a settled category of case in which a duty of care has been negated and that the inquiry should end here.
[75] Each party cited cases to support the answer they advocate. If undertaking a statistical count, one would find that cases involving a public health or policing authority on the one hand and a member of the public on the other do not always yield the same answer. Usually, the courts have concluded that no private law duty of care is owed. However, occasionally and exceptionally, the elements of foreseeability and proximity have been established. [^34] [page600]
[76] In the context of health care, Heaslip Estate v. Ontario ^35 provides a recent example of a case found to fit within a pre-existing category. In that case, a young man suffered life-threatening injuries as a result of a tobogganing accident. He was taken to a local hospital. A need for treatment at a larger hospital was identified and an air ambulance was urgently requested. None was available for some time. The patient was transported by land and, tragically, died en route.
[77] In the lawsuit that followed, the young man's family alleged an air ambulance was nearby and should have been diverted because it was transporting a patient whose life was not in danger. The statement of claim alleged the failure to reassign the air ambulance was contrary to the policy of the Medical Air Transport Centre. The claim alleged negligence on the part of the responsible public authority, the Ministry of Health and Long-Term Care.
[78] The Court of Appeal refused to strike the statement of claim. Sharpe J.A. wrote:
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[.] [^36]
[79] Mr. McCall maintains these cases are different. No "established policy" has been identified which required the Windsor Health Unit to act otherwise than it did. To the contrary.
[80] Dr. Heimann explained the Windsor Health Unit's approach in these terms:
. . . the Health Unit does not take a coercive or punitive approach to the treatment of HIV positive persons as a matter of policy. The Health Unit's philosophy is to have HIV positive persons take responsibility for their sexual behaviour and voluntarily change that behaviour to reduce or eliminate the spread of disease.
The Health Unit has an interest in protecting the privacy of its clients in order to establish a cooperative relationship that will promote public health through voluntary compliance. The Health Unit also has a general interest in maintaining client confidentiality, as to breach confidentiality would deter community members from attending at or following up with the Health Unit. This would undermine the Health Unit's mandate to protect public health. It is also important to maintain client confidentiality to avoid the stigmatization of HIV positive persons. [page601]
[81] Turning to the Windsor Police, Mr. Szalkai acknowledges a duty of care was imposed on the police in Hill v. Hamilton- Wentworth Regional Police Services Board ("Hill"). [^37] In that case, an action was brought by a person who was investigated, arrested, charged, convicted and ultimately vindicated after spending a significant time in jail for a crime he did not commit.
[82] The majority of the Supreme Court of Canada concluded the relationship between a police officer and a particular suspect supported a prima facie duty of care.
[83] Mr. Szalkai submits that Hill does not stand for the proposition that the police owe a duty of care to members of the public in all situations.
[84] He observed that the majority in Hill was careful to note that its conclusion was based on
. . . the seriousness of the interests at stake for the suspect, the legal duties owed by police to suspects under their governing statutes and the Charter and the importance of balancing the need for police to be able to investigate effectively with the protection of the fundamental rights of a suspect or accused person. [^38]
[85] The chief justice noted the "considerations informing the analysis of both proximity and policy would be different in the context of other relationships involving . . . for example . . . the police and a victim". ^39
[86] In Project 360 Investments Ltd. v. Toronto Police Services Board, MacDonnell J. noted the detailed analysis undertaken in various cases of the issue of proximity would not have been necessary "if there were a general private law duty of care owed by the police to individual members of the public". [^40] I agree.
[87] Mr. Sasso relies on Jane Doe. That case arose after Ms. Doe was sexually assaulted in her second-floor apartment. She lived alone and her apartment had a climbable balcony. Four other women in her neighbourhood had been the subject of like attacks in the preceding eight months. During their investigation, the police had concluded that all of the sexual assaults had been committed by the same person. Ms. Doe alleged that the police were negligent in two respects: failing to apprehend [page602] the serial rapist earlier and in failing to issue a warning which would have alerted Ms. Doe to the need to take special care.
[88] In addressing the issue of whether the police owed Ms. Doe a private law duty of care, MacFarland J. (as she then was) reviewed the evidence gathered over the course of the eight- week trial and observed:
The evidence establishes that [the police] clearly had linked the four rapes which preceded Ms. Doe's . . . and [the police] knew that the rapist would continue to attack women until he was stopped. They knew the rapist was attacking single white women living alone in second- and third-floor apartments with balconies in the Church/Wellesley area of the City of Toronto.
On the evidence I find the plaintiff has established a private law duty of care. [^41]
[89] Having reviewed and considered these cases, I am unable to reach the off-the-shelf conclusion advocated by either side. These cases do not fall within an established or analogous category establishing -- or negating -- a duty of care. It is inaccurate to say that a private law duty of care is never imposed on public authorities responsible for policing or health. However, it is equally inaccurate to say that a private law duty of care always arises. The facts of these cases are not a perfect fit with any one that has preceded them. [^42]
[90] The fact an action is not within a pre-existing category of negligence is not, of itself, fatal. It simply means that administration of the full Anns/Cooper test is required. [^43]
[91] The first stage requires an answer to this question: do the facts disclose sufficient foreseeability and proximity to establish a prima facie duty of care? [^44] The plaintiffs bear the onus of satisfying this stage. [^45]
[92] The first element is whether the harm was reasonably foreseeable.
[93] Spencer v. Canada (Attorney General) provides an illustration. After a domestic incident, Mr. Spencer was arrested by the RCMP. The next day, he was allowed to return to his [page603] residence. [^46] After the departure of the police, it was heavily damaged by a fire Mr. Spencer set. In the action that followed, it was alleged the police were negligent in leaving Mr. Spencer unattended at home.
[94] In granting the RCMP's motion for summary judgment, Pickup J. of the Nova Scotia relied on the evidence of the police that
. . . Mr. Spencer had no recent criminal record, nor any record of domestic assault. Officers spoke with Ms. Spencer as to the release conditions and Mr. Spencer was released on an undertaking, one provision of which would have been to not have any contact with Ms. Spencer. [^47]
[95] With respect to the first stage of the Anns/Cooper test, the motion judge concluded that the wrong committed by Mr. Spencer -- arson -- was not foreseeable.
[96] These cases do not face the same obstruction. The moving parties concede it was foreseeable that Mr. Leone would have unprotected sex with unsuspecting women and infect them.
[97] That takes us to the issue of proximity -- the place where many actions against public authorities fail.
[98] I pause here to deal briefly with the moving parties' argument that the plaintiffs' pleadings are deficient because they do not allege "proximity". I disagree. The elements of negligence are pleaded: foreseeability, a duty of care, a failure to meet the required standard of care and resulting damage along with the material facts to support them. As noted, in order to establish the existence of a duty of care, each element, including proximity, must be proven. No authority or rule was cited to me that leads to the conclusion the pleadings are defective, let alone fatally so.
[99] With that, I return to the moving parties' assertion that no private law duty of care exists.
[100] In R. v. Imperial Tobacco Canada Ltd. ("Imperial Tobacco"), the Supreme Court of Canada identified three situations in which a government actor may owe a duty of care.
The first is the situation where the alleged duty of care is said to arise explicitly or by implication from the statutory scheme. The second is the situation where the duty of care is alleged to arise from interactions between the claimant and the government, and is not negated by the statute. [^48] [page604] . . . . .
Finally, it is possible to envision a claim where proximity is based both on interactions between the parties and the government's statutory duties. [^49]
[101] The Windsor Health Unit is a statutory body regulated by the HPPA. Section 2 provides that the purpose of the statute
. . . 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.
[102] The Police Services Act applies to municipal police forces and the Ontario Provincial Police. It requires that police services be provided in accordance with six principles. First mentioned is the "need to ensure the safety and security of all persons and property in Ontario" (s. 1). The duties of a police officer include "preventing crimes" (s. 42(1)(b)).
[103] The parties agree that a detailed analysis of the statutory schemes is unnecessary. They concede that the legislation -- the Police Services Act [^50] in the case of the Windsor Police and the HPPA [^51] in the case of the Windsor Health Unit -- neither creates nor forecloses a private law duty of care.
[104] The moving parties submit that leaves the plaintiffs in a hopeless position because they must establish a direct relationship with the public authorities that simply did not exist. In Imperial Tobacco, McLachlin C.J.C. wrote on behalf of the court:
The second situation is where the proximity essential to the private duty of care is alleged to arise from a series of specific interactions between the government and the claimant. The argument in these cases is that the government has, through its conduct, entered into a special relationship with the plaintiff sufficient to establish the necessary proximity for a duty of care. [^52]
[105] In that case, a class action was commenced on behalf of consumers of light cigarettes. They alleged that product was just as harmful as regular cigarettes. The proposed class sued Imperial Tobacco. They sought reimbursement of the cost of the cigarettes and punitive damages. Imperial Tobacco issued a third party claim against the federal Crown. It alleged that Canada breached a private law duty of care to consumers by, among [page605] other things, negligently misrepresenting the health attributes of low-tar -- or light -- cigarettes.
[106] In striking the third party claim, the court noted that there was "no direct relationship" between the federal Crown and those who purchased light cigarettes. Public statements had been made that the product was less hazardous but those were insufficient to constitute "specific interactions". Citing Cooper, the chief justice concluded:
Consequently, a finding of proximity in this relationship must arise from the governing statute[.] [^53]
[107] As already noted, the HPPA and Police Services Act do not, on their own, create a private law duty of care in favour of a member of the general public. The entire factual matrix must be examined to determine whether "it is just and fair . . . to impose a duty of care in law upon the defendant". [^54]
[108] What relationship is necessary for a private law duty of care to arise?
[109] I return to Heaslip Estate [^55] for an illustration. In its decision, the Court of Appeal applied the full Anns/Cooper test. It held that a prima facie duty of care had been established. On behalf of the court, Sharpe J.A. wrote:
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[.]
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. [^56] [page606]
[110] The learned judge elaborated:
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 would 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. [^57]
[111] The moving parties point to the absence of a direct relationship between the plaintiffs and the public authorities they represent. As already noted, none of the plaintiffs had any contact with the Windsor Police before May 2004 and Jane Roe did not mention Mr. Leone's name in her dealings with the Windsor Health Unit. They say that deals a fatal blow to the plaintiffs' attempt to establish proximity. Weighty authority seems to support that submission. Writing for the majority in Hill, McLachlin C.J.C. noted:
The proximity inquiry asks whether the case discloses factors which show that the relationship between the plaintiff and the defendant was sufficiently close to give rise to a legal duty of care. The focus is on the relationship between alleged wrongdoer and victim: is the relationship one where the imposition of legal liability for the wrongdoer's actions is appropriate? [^58]
[112] As already observed, in that case the Supreme Court of Canada concluded that the relationship between an investigating officer and a suspect was sufficiently proximate to warrant recognition of a private law duty of care.
[113] I return to the three cases on which Mr. McCall placed greatest reliance.
[114] In Eliopoulos v. Ontario (Minister of Health & Long- Term Care), [^59] the estate and family of a person who died after becoming infected with the West Nile virus alleged the Ministry of Health and Long-Term Care should have done more to prevent it. The family members alleged the HPPA imposed a private law duty on Ontario to safeguard the health of its residents. As already noted, the Court of Appeal concluded that was not so. The statute created a general public law duty but [page607] nothing upon which an action in negligence could be founded. Sharpe J.A. noted:
. . . no facts are pleaded to distinguish the risk faced by Eliopoulos from the risk faced by everyone else in the province. [^60]
[115] The claims in Williams v. Canada (Attorney General) ("Williams") [^61] and Abarquez v. Ontario ("Abarquez") [^62] were made by persons who contracted SARS. Ms. Williams had contracted SARS while in hospital having a surgical procedure. The 53 plaintiffs in Abarquez were nurses who contracted SARS while working at Toronto hospitals. None of them succeeded in establishing a private law duty of care.
[116] In Abarquez, that conclusion was reached notwithstanding the fact that "[n]urses were, by virtue of their profession, in the eye of the SARS storm". [^63]
[117] However and with respect, I agree with Mr. Sasso that the moving parties have read the cases too narrowly. The law does not require direct communication or interaction between the government authority and the plaintiff.
[118] Odhavji Estate v. Woodhouse [^64] addresses this point specifically.
[119] That case arose following the fatal shooting of Mr. Odhavji by the police. The officers involved were statutorily obligated to co-operate in an investigation by the Special Investigations Unit of the Ministry of the Solicitor General. His family alleged that various defendants, including the chief of the Toronto Police Service and the Metropolitan Toronto Police Services Board ("Toronto Police Service"), failed to ensure that the police officers fulfilled the statutory requirements.
[120] Several defendants moved to strike the statement of claim at the pleadings stage. The negligence claim against the chief of the Toronto Police Service survived the motion. One of the factors leading to that conclusion was summarized by Iacobucci J. in these terms: [page608]
In the present case, one factor that supports a finding of proximity is the relatively direct causal link between the alleged misconduct and the complained of harm. [^65] (Emphasis added)
[121] On the other hand, the negligence claim against the Toronto Police Service was not permitted to continue because of "the lack of a close causal connection between the alleged misconduct and the complained of harm" [^66] (emphasis added).
[122] The principle was explained in greater depth in Hill. McLachlin C.J.C. wrote:
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 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. A sufficiently close and direct connection between the actions of the wrongdoer and the victim may exist where there is a personal relationship between alleged wrongdoer and victim. However, it may also exist where there is no personal relationship between the victim and wrongdoer. [^67] (Italics in original)
[123] The importance of the plaintiff being within the reasonable contemplation of the alleged wrongdoer is illustrated by Thompson v. Saanich (District) Police Department. In that case, the plaintiff reported to the police that his children had been assaulted by his estranged spouse. In his action, Mr. Thompson alleged that the police failed to properly investigate the allegations and that the failure resulted in estrangement from his children. The decision to strike the claim at the opening of trial was upheld by the British Columbia Court of Appeal. Saunders J.A. held:
In my view, the relationship of Mr. Thompson to the police officers, even on his full pleadings, is not sufficiently proximate to find a duty of care. Mr. Thompson was not the subject of the information provided to the police, either as a person said to be wronged -- who were his children, or the person thought to be the wrongdoer -- Ms. Thompson. He was, although the father of the children, one party removed from the complaint. I consider it is plain and obvious, on the pleadings that Mr. Thompson was [page609] not within the circle of people the police would reasonably have in mind as a person potentially harmed by their actions. [^68]
[124] This is the conclusion the moving parties ask me to reach. The plaintiffs were unknown. It was impossible to know what woman would be subjected or succumb to Mr. Leone's apparent charm. He did not confine his gaze to the geographical location that was within the jurisdiction of the Windsor Health Unit or the Windsor Police.
[125] It seems to be the position of the moving parties that the plaintiffs' encounter with Mr. Leone was as random as that of Mr. Eliopoulos with a mosquito carrying the West Nile virus or Ms. Williams with SARS. They were unlucky and in the wrong place at the wrong time.
[126] There is, however, a weakness in the submission the Windsor Health Unit and Windsor Police make. They approach the problem by focusing on the relationship between the defendants and the victims. I recognize the plaintiffs' task would be an easier one if that existed.
[127] However, the plaintiffs follow a different path. They focus on the relationship between the alleged negligence and the harm.
[128] Two cases help explain my point. In O'Rourke v. Schacht, [^69] a motorist drove into an open culvert which was under construction on a highway. There had been a sign warning motorists of the hazard. Unfortunately, the sign was dislodged as a result of an earlier accident. The police investigated but failed to ensure the sign was replaced. Although part of an indeterminate group, a private law duty of care was imposed in favour of the unlucky motorist.
[129] The other is Jane Doe. [^70] As noted, she was the victim of a serial rapist who climbed onto her balcony and gained entry to her apartment. Ms. Doe was not known to the police but yet a duty of care was imposed.
[130] I recognize that these cases are not identical. In Jane Doe, the suspect's methods and area or operation were known. [page610] Suffice to say that Mr. Leone used different methods and selected his victims from a larger geographical area. That is a distinguishing feature. Is that determinative? I'm not certain it is.
[131] In Jane Doe, the identity of the person who was sexually assaulting women was unknown. These cases differ. Mr. Leone was not a stranger to either public authority. The Windsor Health Unit knew of his medical condition before Mr. Leone did. The Windsor Police started to investigate Mr. Leone more than four years before he was arrested.
[132] Long before any of the plaintiffs met Mr. Leone, both defendants knew more. The Windsor Health Unit had received reports from several sources that Mr. Leone was doing two things he was not supposed to: he was having sex without disclosing to his partners that he was HIV positive and he was not using protection. Members of its staff also knew that Mr. Leone was uncooperative. Their concerns reached the level that Mr. Leone's presence was required at which time he was given -- and refused to sign -- a letter of concern and request.
[133] The Windsor Police knew something too: that the original complainant had, after inexplicably absenting herself for awhile, resurfaced and according to the police officer who spoke to her, promised "to assist police in stopping Leone from infecting more people because of counselling she has been taking". The note went into an abyss meaning the assigned detective did not reactivate an investigation she showed every interest in completing.
[134] The plaintiffs allege that the moving parties had within their grasp a sexual predator concerned with self- gratification without regard to the consequences. The plaintiffs allege the moving parties knew -- or had the means of knowing -- that a promiscuous and unimpeded Mr. Leone would not practice safe sex or disclose his HIV-positive status, thereby endangering the health and welfare of unsuspecting partners.
[135] The plaintiffs argue that the moving parties knew that every woman who partnered with Mr. Leone was at risk and that they could have and should have taken steps to do that which they are statutorily obligated to do: in the case of the Windsor Health Unit prevent the spread of disease to future sexual partners of Mr. Leone and in the case of the Windsor Police ensure their safety.
[136] Was the only option warning all women as the moving parties seem to suggest? No. Another option was to deal directly with Mr. Leone and, if necessary, impose sanctions the law allows. [page611]
[137] The moving parties also maintain that recognition of a private law duty of care in favour of the plaintiffs would put them in a position of conflict: with clients in the case of the Windsor Health Unit and suspects in the case of the Windsor Police. [^71] While a relevant -- and occasionally determinative [^72] -- factor, I am not in a position, on this record, to say that is so. Furthermore, there exists the distinct possibility that even if conflicting duties exist, a point may be reached where one prevails.
[138] The Windsor Health Unit also argues that its course of action was a product of a policy which is not capable of challenge. [^73] The plaintiffs' counter that inappropriate operational decisions were made.
[139] Writing on behalf of a unanimous panel of the Divisional Court in Jane Doe, Moldaver J. (as he then was) said:
This principle is well established . . . even if a private law duty of care exists, policy decisions made by public officials will not attract liability in tort so long as they are reasonably and responsibly made. On the other hand, when it comes to the implementation of policy decisions, i.e., the operational area, public officials who owe a private law duty of care will be exposed to the same liability as others if they fail to take reasonable care in discharging their duties. [^74]
[140] Simply put, on this record I am unable to reach the conclusion that the plaintiffs seek to challenge decisions of a policy nature.
[141] I return to the question posed in Combined Air. Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?
[142] In R. v. Cuerrier, [^75] the Supreme Court of Canada was asked to determine whether consent to sexual intercourse was vitiated by an accused's failure to inform a sexual partner of his HIV-positive status. Cory J. addressed the argument that public [page612] health initiatives -- rather than the criminal law -- were more appropriately employed to control the spread of HIV and AIDs. He wrote:
This case provides a classic example of the ineffectiveness of the health scheme. The respondent was advised that he was HIV-positive and on three occasions he was instructed to advise his partner of this and not to have unprotected sex. Nevertheless, he blithely ignored these instructions and endangered the lives of two partners.
Where public health endeavours fail to provide adequate protection to individuals like the complainants, the criminal law can be effective. It provides a needed measure of protection in the form of deterrence and reflects society's abhorrence of the self-centered recklessness and the callous insensitivity of the actions of the respondent and those who have acted in a similar manner. The risk of infection and death of partners of HIV is a cruel and ever present reality. [^76]
[143] The plaintiffs allege that there are other consequences of a failure of public health or policing endeavours: civil liability.
[144] In my view, a trial is essential to fairly resolve the duty of care issue.
[145] These cases are legally and factually complex. At least in my mind they are a variation on those seen before. Where on the spectrum these actions lie should, in my view, be determined at trial based on an evidentiary record compiled at the pace and in the environment a trial allows. [^77] Even if the cases are novel, they deserve to be fully heard. As Sharpe J.A. has written:
It has long been recognized that the categories of negligence are not closed and that the law must remain open to the recognition of new duties of care. [^78]
[146] One could go so far as saying that the need for a trial is mandated in cases such as these. I return to the unanimous decision of the Supreme Court of Canada in Imperial Tobacco. At para. 47, the chief justice wrote: [page613]
. . . where the asserted basis for proximity is grounded in specific conduct and interactions, ruling a claim out at the proximity stage may be difficult. So long as there is a reasonable prospect that the asserted interactions could, if true, result in a finding of sufficient proximity, and the statute does not exclude that possibility, the matter must be allowed to proceed to trial, subject to any policy considerations that may negate the prima facie duty of care at the second stage of the analysis. [^79]
[147] It is only in the context of a trial that other issues raised can be resolved. [^80] The benefits of the trial process are well and aptly addressed in this passage from Combined Air:
. . . the trial judge is a trier of fact who participates in the dynamic of a trial, sees witnesses testify, follows the trial narrative, asks questions when in doubt as to the substance of the evidence, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses . . . The nature of the process is such that it is unlikely that the judge will overlook evidence as it is adduced into the record in his or her presence. [^81]
[148] Mr. Szalkai did not challenge the right of the plaintiffs to proceed at the second stage of the Anns/Cooper test. Mr. McCall did. He argued that stage two of the Anns/ Cooper analysis deals the claims a fatal blow. He maintained residual policy considerations exist, namely, the risk of indeterminate liability if a private law duty of care is imposed. I am unable to reach that conclusion on this record. The plaintiffs in these actions have particular and pivotal attributes. They were involved in a romantic relationship with Mr. Leone and are HIV positive as a result of it. I agree with the comments of Roberts J. in Laiken v. Carey:
Novel causes of action, particularly ones involving public policy concerns, are best determined on a fully developed record at trial, rather than on a summary judgment motion. [^82] [page614]
[149] Whether these cases are consistent with, an incremental change to or a dramatic shift from existing authorities cannot -- and should not -- be determined at the summary judgment stage. F. Conclusion
[150] For the reasons given, determination of whether the Windsor Health Unit and/or the Windsor Police owe any or all of the plaintiffs a private law duty of care must be determined at trial. The motions for summary judgment are dismissed.
[151] Unless resolved consensually, the parties are asked to deliver cost outlines to me not exceeding five pages through judges' administration in London by no later than November 20, 2012 in the case of the plaintiffs and by no later than December 7, 2012 in the case of the moving parties.
[152] I am grateful to all counsel for their assistance.
Motion dismissed.
Notes
[^1]: In para. 57 of the amended further fresh statement of claim in the Jane Roe action, the date is erroneously said to have been April 27, 2005. The correct year appears in para. 64. The same error is made in paras. 54 of the amended fresh statement of claim in the J.R. and M.M. action and in para. 50 of the same pleading in the A.P. action.
[^2]: The Windsor Health Unit also seeks an order dismissing the crossclaim the Windsor Police Service has asserted against it. Section 50(1) of the Police Services Act, R.S.O. 1990, c. P.15 provides that a municipal police services board is liable in respect of torts committed by members of the police force in the course of their employment. There is an analogous provision in the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (the "HPPA"), s. 95.
[^3]: The Windsor Health Unit's motion was originally returnable in October 2011.
[^4]: This excerpt is drawn from para. 18 of the affidavit of Jennifer Stirton sworn August 26, 2011 (the "Stirton affidavit").
[^5]: This excerpt is drawn from para. 22 of the Stirton affidavit.
[^6]: Transcript of the examination for discovery of Laurel Boots conducted July 22, 2008 (the "Boots transcript"), p. 109, q. 346.
[^7]: These excerpts are drawn from paras. 24 and 25 of affidavit of Jerome Brannagan sworn October 31, 2011 (the "Brannagan affidavit").
[^8]: Hill v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238, [1989] 1 A.C. 53 (H.L.); Hill v. Hamilton- Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41 ("Hill"); Project 360 Investments Ltd. v. Toronto Police Services Board, 2009 CanLII 36380 (ON SC), [2009] O.J. No. 2473 (S.C.J.) ("Project 360"); Burnett v. Moir, 2011 BCSC 1469, [2011] B.C.J. No. 2060, 87 C.C.L.T. (3d) 235 (S.C.).
[^9]: (2011), 2011 ONCA 274, 105 O.R. (3d) 81, [2011] O.J. No. 1615 (C.A.), at para. 20 ("Wellington").
[^10]: At first instance, the defendant moved to strike Ms. Doe's statement of claim. Henry J. dismissed the motion at 1989 CanLII 5300 (ON SC), [1989] O.J. No. 471, 58 D.L.R. (4th) 396 (H.C.J.). An appeal to the Divisional Court was dismissed at (1990), 1990 CanLII 6611 (ON SC), 74 O.R. (2d) 225, [1990] O.J. No. 1584 (Div. Ct.) (the "Jane Doe motion to strike decision"), leave to appeal refused (1991), 1991 CanLII 7565 (ON CA), 1 O.R. (3d) 416, [1991] O.J. No. 3673 (C.A.). The trial decision is reported at (1998), 1998 CanLII 14826 (ON SC), 39 O.R. (3d) 487, [1998] O.J. No. 2681 (Gen. Div.) (the "Jane Doe trial decision").
[^11]: He also relied on Attis v. Canada (Minister of Health) (2008), 2008 ONCA 660, 93 O.R. (3d) 35, [2008] O.J. No. 3766 (C.A.) and Drady v. Canada (Minister of Health), 2008 ONCA 659, [2008] O.J. No. 3772, 300 D.L.R. (4th) 443 (C.A.).
[^12]: (2009), 2009 ONCA 374, 95 O.R. (3d) 414, [2009] O.J. No. 1814 (C.A.) ("Abarquez"), leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 297.
[^13]: (2011), 2011 ONCA 764, 108 O.R. (3d) 1, [2011] O.J. No. 5431 (C.A.). On June 28, 2012, the applications for leave to appeal to the Supreme Court of Canada in Bruno Appliance and Furniture, Inc. v. Hryniak [[2012] S.C.C.A. No. 48] and in Hryniak v. Mauldin [[2012] S.C.C.A. No. 47] were granted. They are currently scheduled to be argued March 26, 2013.
[^14]: Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562, [1932] All E.R. Rep. 1 (H.L.); Hercules Managements Ltd. v. Ernst & Young, 1997 CanLII 345 (SCC), [1997] 2 S.C.R. 165, [1997] S.C.J. No. 51; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, at paras. 32-34 ("Cooper").
[^15]: Cooper, supra, note 14, at para. 35.
[^16]: This excerpt is drawn from para. 5(b) of the plaintiffs' factum.
[^17]: Transcript of the examination of Mary Lou Chapman conducted August 5, 2011 (the "Chapman transcript"), p. 50, q. 212-13.
[^18]: The order indicated that a failure to comply was an offence under the HPPA giving rise to the penalties the offence section prescribes.
[^19]: Transcript of the examination for discovery of Deborah Anne Bennett conducted February 11, 2010 (the "Bennett transcript"), q. 970-974.
[^20]: Ibid., pp. 58-9, q. 257.
[^21]: Boots transcript, q. 605.
[^22]: Mr. Sasso relied principally on Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132, [2010] S.C.J. No. 5 ("Fullowka") and Taylor v. Canada (Attorney General) (2012), 111 O.R. (3d) 161, [2012] O.J. No. 3208, 2012 ONCA 479 ("Taylor"). See, too, Dorset Yacht Co v. Home Office, [1970] A.C. 1004 (H.L.).
[^23]: Supra, note 13.
[^24]: Ibid., at para. 50.
[^25]: Ibid., at para. 54.
[^26]: This excerpt is drawn from para. 2 of the plaintiffs' factum.
[^27]: These excerpts are drawn from paras. 3 and 4 of the plaintiffs' factum.
[^28]: Taylor, supra, note 22, at para. 71.
[^29]: Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, [2006] S.C.J. No. 18, at para. 15 ("Childs").
[^30]: Supra, note 22, at para. 73; Childs, supra, note 29, at para. 15.
[^31]: Hill, supra, note 9, at para. 25.
[^32]: Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.) ("Anns"); Kamloops (City) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2, [1984] S.C.J. No. 29.
[^33]: Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228, [1989] S.C.J. No. 121; Swinamer v. Nova Scotia (Attorney General), 1994 CanLII 122 (SCC), [1994] 1 S.C.R. 445, [1994] S.C.J. No. 21.
[^34]: I have already mentioned Jane Doe. In the context of health, see Heaslip Estate v. Ontario (2009), 2009 ONCA 594, 96 O.R. (3d) 401, [2009] O.J. No. 3185 (C.A.) ("Heaslip").
[^36]: Ibid., at para. 21.
[^37]: Supra, note 8.
[^38]: Ibid., at para. 27.
[^40]: Supra, note 8, at para. 28.
[^41]: Jane Doe trial decision, supra, note 10, pp. 523-24 O.R.
[^42]: Taylor, supra, note 22, at para. 112.
[^43]: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, at paras. 37-38 ("Imperial Tobacco").
[^44]: Hill, supra, note 8, at para. 20.
[^45]: River Valley Poultry Farm Ltd. v. Canada (Attorney General) (2009), 95 O.R. (3d) 1, [2009] O.J. No. 1605, 2009 ONCA 326, at para. 33.
[^46]: [2010] N.S.J. No. 640, 2010 NSSC 446.
[^47]: Ibid., at para. 39.
[^48]: Supra, note 44, at para. 43.
[^49]: Ibid., at para. 46.
[^50]: R.S.O. 1990, c. P.15.
[^51]: Supra, note 2.
[^52]: Supra, note 43, at para. 45.
[^53]: Ibid., at para. 49.
[^54]: Cooper, supra, note 14, para. 34; Eliopoulos v. Ontario (Minister of Health & Long-Term Care) (2006), 2006 CanLII 37121 (ON CA), 82 O.R. (3d) 321, [2006] O.J. No. 4400 (C.A.), at para. 11, leave to appeal to the S.C.C. refused [2006] S.C.C.A. No. 514, 2007 CanLII 19108.
[^55]: Heaslip, supra, note 34.
[^56]: Ibid., at paras. 18-19.
[^57]: Ibid., at para. 26.
[^58]: Supra, note 8, at para. 23.
[^59]: Supra, note 54.
[^60]: Ibid., at para. 26.
[^61]: (2009), 2009 ONCA 378, 95 O.R. (3d) 401, [2009] O.J. No. 1819 (C.A.), leave to appeal refused [2009] S.C.C.A. No. 298.
[^62]: Supra, note 12.
[^63]: Ibid., at para. 20.
[^64]: 2003 SCC 69, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74.
[^65]: Ibid., at para. 56.
[^66]: Ibid., at para. 64.
[^67]: Supra, note 8, at para. 29.
[^68]: 2010 BCCA 308, [2010] B.C.J. No. 1239, 320 D.L.R. (4th) 496 (C.A.), at para. 27 ("Thompson"), leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 329, 2010 CarswellBC 3522. The Thompson case can be distinguished from M. (B.) v. British Columbia (Attorney General), 2004 BCCA 402, [2004] B.C.J. No. 1506, 25 C.C.L.T. (3d) 234 (C.A.), leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 428, 2005 CarswellBC 413.
[^69]: 1974 CanLII 28 (SCC), [1976] 1 S.C.R. 53, [1974] S.C.J. No. 139.
[^70]: See, too, Fullowka, supra, note 22, at paras. 26 and 40-46.
[^71]: Wellington, supra, note 9, at para. 48; Hill, supra, note 8, at para. 131; Syl Apps Secure Treatment Centre v. D. (B.), [2007] 3 S.C.R. 83, [2007] S.C.J. No. 38, 2007 SCC 38, at para. 28.
[^72]: Abarquez, supra, note 12, at para. 28.
[^73]: See, for example, the decision of Code J. in Whiteman v. Iamkhong, [2010] O.J. No. 966, 2010 ONSC 1456 (S.C.J.), at paras. 48-49.
[^74]: Jane Doe motion to strike decision, supra, note 10, at p. 232 O.R.
[^75]: 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, [1998] S.C.J. No. 64.
[^76]: Ibid., at paras. 141-42. For a recent analysis of the decision, see R. v. Mabior, [2012] S.C.J. No. 47, 2012 SCC 47 and R. v. C. (D.), [2012] S.C.J. No. 48, 2012 SCC 48. At para. 91 of R. v. Mabior, the chief justice concluded disclosure of one's HIV status is required if there is a realistic possibility of transmission of HIV.
[^77]: Fullowka, supra, note 22 is instructive. There, Cromwell J. wrote, at para. 41:
In the case of the mining safety regulators and the miners, the closeness of the relationship is somewhere between that in Hill, on the one hand, and Cooper and Edwards on the other.
[^78]: Eliopoulos, supra, note 54, para. 13.
[^79]: Supra, note 43. See, too, Baglow v. Smith (2012), 2012 ONCA 407, 110 O.R. (3d) 481, [2012] O.J. No. 2668 (C.A.), at para. 29. In my view, the circumstances in which a duty of care will arise in favour of a victim of aggravated sexual assault are not well developed.
[^80]: For a helpful discussion concerning new categories of claims, see Childs, supra, note 29, at paras. 9-15 and 37-38.
[^81]: Supra, note 13, at para. 47.
[^82]: [2011] O.J. No. 5376, 2011 ONSC 5892 (S.C.J.), at para. 68, leave to appeal refused [2011] O.J. No. 6116, 2011 ONSC 7629 (Div. Ct.). See, too, Linden and Feldthusen, Canadian Tort Law, 9th ed. (Markham, Ont.: LexisNexis, 2011), at p. 307.