Court File and Parties

COURT FILE NO.: 16-58562 DATE: 2017-07-10 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

JENNIFER UMLAUF Self-Represented Plaintiff

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HALTON HEALTHCARE SERVICES, JOSEPH BRANT HOSPITAL, MISSISSAUGA HALTON LOCAL HEALTH INTEGRATION NETWORK, and THE MINISTRY OF HEALTH AND LONG-TERM CARE Richard Miller, for the Moving Defendants (underlined) Defendants

HEARD: March 31, 2017

The Honourable Justice C.D. Braid

REASONS ON MOTION TO STRIKE CLAIM

I. OVERVIEW

[1] Jennifer Umlauf was a patient at Halton Healthcare Services and Joseph Brant Hospital. She also worked at Halton Healthcare. Ms. Umlauf sued both hospitals and two government agencies who provided funding to the hospitals. The government agencies move to strike the claim and dismiss the action against them.

[2] On this motion, the court must determine whether the claim against the moving defendants discloses a reasonable cause of action. The following issues arise:

A. What is the test to be applied on a motion to strike a claim? B. Do the Ministry of Health and Long-Term Care (the Crown) or the Local Health Integration Network (LHIN) owe a duty of care to the plaintiff? C. Are government funding decisions, review and/or performance standards actionable? D. Is the claim against the Crown a nullity? E. Do the Charter claims have a reasonable prospect of success?

[3] For the reasons that follow, I conclude that it is plain and obvious, on the facts that have been pleaded, that the Crown and the LHIN do not owe a private law duty of care to the plaintiff. The action against them is dismissed.

II. STATEMENT OF CLAIM

[4] Ms. Umlauf represents herself in this action. The Statement of Claim is 32 pages in length. It is confusing, rambling, and repetitive at times.

[5] The LHIN is a defendant. The LHIN is a corporation (created under the Local Health System Integration Act, 2006, S.O. 2006, c. 4 [LHSIA]) that plans, funds, and integrates local health systems.

[6] The Ministry of Health and Long-Term Care is also named as a defendant. The Ministry of Health is not a proper party because it is not a suable entity. Giving the claim a generous reading, I will proceed on the basis that the proper title for this defendant is Her Majesty the Queen in Right of Ontario. I shall refer to this defendant as the Crown.

[7] On this motion, I must assume that the facts pleaded are true. The Statement of Claim pleads the following relevant facts:

i. Ms. Umlauf became an employee of Halton Healthcare on June 4, 2008. ii. While Ms. Umlauf was employed by Halton Healthcare, the hospital received additional temporary funding from the LHIN and/or the Crown to support planning for a new Oakville hospital. iii. The Crown and the LHIN share the role of managing hospital funding, as detailed in the LHIN Performance Agreement. They have a joint responsibility to serve the public interest and effectively oversee the use of public funds. iv. Ms. Umlauf believed there was a mismatch of transitional and operating funding at Halton Healthcare, and that the Crown and the LHIN were not holding her employer (Halton Healthcare) accountable. v. Ms. Umlauf believed that the influx of transitional funding led individuals at Halton Healthcare to bully her. vi. Ms. Umlauf’s boss excluded her from some senior meetings. vii. On August 19, 2013, Ms. Umlauf was admitted as a psychiatric patient at Joseph Brant Hospital. During this stay, Ms. Umlauf was physically restrained. She was scratched on her calf during this incident. The hospital records did not document all of the people involved in restraining Ms. Umlauf. viii. On October 8, 2013, Ms. Umlauf was involuntarily admitted as a psychiatric patient at Halton Healthcare. ix. On April 20, 2015, Ms. Umlauf was laid off from her employment with Halton Healthcare.

[8] The following is a summary of the claims against the Crown and the LHIN:

i. Providing transitional funding and/or mismanagement of funding: The plaintiff alleges that transitional funding led to her being bullied and psychologically harassed as an employee at Halton Healthcare. She claims that she developed a disabling mental health disorder that led to a psychotic event. She claims that she suffered Post-Traumatic Stress Disorder, mental anguish, and/or decreased cognitive abilities. ii. Failure to set performance standards and/or criminal negligence causing bodily harm: The plaintiff was admitted to the inpatient psychiatric ward at Joseph Brant Hospital. She was physically restrained and was scratched, on her calf, by a staff member who was not wearing gloves. She makes a claim for criminal negligence causing bodily harm arising out of this incident. She says that the hospital did not keep proper records of the incident, which robbed her of her right to gather evidence. iii. Failure to set performance standards and/or failure to review all hospital-acquired infection incidents: The plaintiff was admitted as an involuntary psychiatric inpatient at Halton Healthcare Services. She acknowledges that she has anxiety around infection. She believes that unsanitary conditions caused her to suffer illness, including a severe respiratory infection, chronic inflammation in her throat, chronic peeling facial skin, and a bladder infection. She fears that she may have contracted an infection from the scratch she received while at Joseph Brant Hospital. She claims that the Crown failed to review all hospital-acquired infection incidents for mental health patients and failed to set performance standards in its accountability agreements. iv. Breaches of the Canadian Charter of Rights and Freedoms: The alleged breaches relate to s. 53(1) of the Mental Health Act, R.S.O. 1990, c. M.7, the allocation of transitional funding, and the failure to implement provincial-wide standards in adult mental health services.

[9] The plaintiff served a Notice of Constitutional Question. In the Notice (and subsequent documentation provided) she alleges three Charter breaches:

i. The failure of s. 53(1) of the Mental Health Act to specifically mandate that the names of staff providing care and their signatures be documented in a patient’s record of personal health information when a patient has been restrained, which violated her right to gather evidence from the hospital where she was physically restrained and scratched. ii. The Crown and the LHIN robbed the plaintiff of her right to a safe work environment through the allocation of transitional funding that led to staff bullying or psychologically harassing her. iii. The Crown and the LHIN robbed the plaintiff of her right to a safe environment as a mental health patient, by failing to implement province-wide standards in its adult mental health services area when she was involuntarily admitted at Halton Healthcare and Joseph Brant hospitals.

[10] The Notice states that the plaintiff intends to claim “a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Ontario”. Although the Notice does not plead a breach of any substantive Charter rights, the plaintiff has stated (in other material) that her rights under ss. 7, 8, 9 and 12 of the Charter have been infringed.

III. ANALYSIS

A. Test to be Applied on a Motion to Strike a Claim

[11] The Crown and the LHIN bring this motion for an order striking the Claim and dismissing the action against them pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. They argue that the claim against them discloses no reasonable cause of action.

[12] A claim will only be struck if it is plain and obvious that the pleading discloses no reasonable cause of action. The novelty of the claim should not prevent the plaintiff from proceeding: see R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42.

[13] The motion to strike proceeds on the basis that the facts pleaded are true. The claim is to be read generously with allowance for drafting deficiencies: see Imperial Tobacco; Deep v. Ontario, [2004] O.J. No. 2734 (S.C.J.) aff’d [2005] O.J. No. 1294 (C.A.).

B. Do the Crown or the LHIN Owe a Duty of Care to the Plaintiff?

[14] Liability in negligence requires that the defendants owe a private law duty of care to the plaintiff. The relationship must be sufficiently proximate and direct that failure to take reasonable care might foreseeably cause harm to the plaintiff: see Imperial Tobacco; Taylor v. Canada (Attorney General), 2012 ONCA 479.

[15] To determine whether there is a prima facie duty of care, the court must examine the factors of reasonable foreseeability and proximity. If this examination leads to the prima facie conclusion that there should be a duty of care imposed on this particular relationship, the court must then consider whether there are residual policy reasons for not imposing that duty: see Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38.

[16] The moving defendants do not have any involvement in the day-to-day actions and responsibilities of the hospitals. This significantly weakens proximity to the plaintiff: see Odhavji Estate v. Woodhouse, 2003 SCC 69. It is not reasonably foreseeable that the moving defendants would or could play a role in the oversight of the daily running of the hospitals and could somehow have prevented injury the plaintiff.

[17] The government does not have a proximate relationship to an individual Canadian when it makes decisions of a political, social, or economic nature. The government’s duty to monitor and fund hospitals is owed to the public at large, and not to the individual consumer. Since no duty of care exists, it is not even necessary to examine whether there are policy reasons not to impose the duty: see Eliopoulos v. Ontario (Ministry of Health and Long-Term Care) (2006), 82 O.R. (3d) 321, 276 D.L.R. (4th) 411 (C.A.), leave to appeal ref’d [2006] S.C.C.A. No. 514; Williams v. Canada (Attorney General), 2009 ONCA 378; Attis v. Canada (Minister of Health), 2008 ONCA 660; and Mitchell Estate v. Ontario (2004), 71 O.R. (3d) 571, 242 D.L.R. (4th) 560 (Div. Ct.).

[18] In addition, the statutory framework makes it clear that there is no duty of care owed to individual patients or hospital employees by the LHIN or the Crown. The overall scheme of the relevant acts confers a mandate to act in the broader public interest and does not create a duty of care to a particular patient or employee.

[19] Section 5(1) of the Public Hospitals Act, R.S.O. 1990, c. P.40, empowers the Crown to fund a hospital if the Minister considers it in the public interest to do so. The LHSIA, specifically s. 19, gives similar discretion to the LHIN. The decision to provide transitional funding to support a new hospital is discretionary, and must be made in the public interest.

[20] Section 9.1 of the Public Hospitals Act outlines the public interest nature of the Crown’s decision-making. Similarly, ss. 1 and 5 of the LHSIA state the public interest nature of the LHIN’s duties. The Crown and the LHIN must balance a myriad of competing interests in exercising discretion whether to fund hospitals and make related decisions under the statutes. The nature of these interests is inconsistent with the imposition of a private law duty of care.

[21] Sections 9.1(2) of the Public Hospitals Act and 35 of the LHSIA also contain immunity provisions. There is clear legislative intent to negate proximity between the moving defendants and individual patients or hospital employees: see Syl Apps.

[22] I conclude that the moving defendants did not owe the plaintiff a duty of care. If I am wrong, there are residual policy considerations for not imposing that duty. Where the Crown’s duty to the public at large conflicts with the proposed private law duty of care, the proposed private duty should be refused: see Syl Apps.

[23] To impose a private law duty of care on the facts that have been pleaded here would create an unreasonable and undesirable burden on the Crown and the LHIN that would interfere with sound decision-making in the realm of public health. It is illogical to suggest that the Crown and LHIN must consider the interests of each individual patient or employee prior to making funding decisions. Creating a duty to the individual would interfere with decision-making in light of scarce resources, especially when a community is underserviced.

[24] Public health priorities should be based on the needs of the public at large. Public health authorities should be able to decide where to focus their attention and resources without the fear or threat of lawsuits.

[25] Since no duty of care is owed by the moving defendants, the claim cannot succeed against them.

C. Are Government Funding Decisions, Review, and/or Performance Standards Actionable?

[26] Under the LHSIA, each LHIN enters into funding agreements with health service providers in its local areas including public hospitals. Under these funding agreements, the LHINs fund the delivery of services. Hospitals remain fully responsible for governing hospital operations.

[27] Section 35 of the LHSIA immunizes the LHIN and the Crown from any civil proceeding for damages in respect of any acts done or omitted to be done, or any decision made under the Act that is done in good faith in the execution of a power or duty under it. In this case, there is no allegation that the moving defendants acted in bad faith.

[28] The Public Hospitals Act governs the relationship between public hospitals and the Crown. As I have stated, s. 5 of the Public Hospitals Act empowers the Minister of Health and Long-Term Care to fund public hospitals when, in his or her discretion, it is in the public interest to do so. In making such a decision, the Minister may consider any matter he or she regards as relevant, including the availability of financial resources for the delivery of health care services and the proper management of the health care system in general.

[29] Section 9.1(2) of Public Hospitals Act provides that no proceeding may be commenced against the Crown or the Minister respecting decisions made in relation to payments to hospitals.

[30] Allegations of funding mismanagement, failure to set performance standards, and failure to review all hospital-acquired infection incidents are actions which fall within the protection of a statute. The Crown and the LHIN are therefore immune from liability: see Polanski v. Scharfe, 2016 ONSC 3861.

[31] Since government funding decisions along with review and performance standards are not actionable, the claim cannot succeed.

D. Is the Claim Against the Crown a Nullity?

[32] Section 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, requires that the plaintiff provide notice of a claim to the Crown at least 60 days before the commencement of the claim.

[33] The plaintiff failed to provide notice in this case. As a result, the claim is a nullity: see Blue v. Ontario (Ministry of Health and Long-Term Care), [2009] O.J. No. 1653. The plaintiff’s statement of claim is struck out and her action dismissed as against the Crown.

E. Do the Charter Claims Have a Reasonable Prospect of Success?

[34] Section 24(1) of the Charter is a remedial provision. For the plaintiff to obtain damages pursuant to this section, the plaintiff must establish a Charter breach: Vancouver (City) v. Ward, 2010 SCC 27. The plaintiff relies on breaches of ss. 7, 8, 9 and 12 of the Charter. I shall examine these allegations below.

a) Section 7 Charter Claim

[35] Section 7 of the Charter states that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[36] An analysis under s. 7 proceeds in two steps. First, there must be a finding that there has been a deprivation of the right to life, liberty, or security of the person. Second, the court considers whether the deprivation (if established) is contrary to the principles of fundamental justice. The plaintiff bears the burden of proof at both stages of the analysis: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44.

[37] The first alleged breach is in respect of s. 53 of the Mental Health Act. The plaintiff argues that the underlying incident for this Charter claim is the care she received when she was physically restrained by staff at Joseph Brant Hospital. However, s. 7 does not guarantee a right to corroboration of evidence or to specific documentary information.

[38] Even if s. 53 of the Mental Health Act were found to be unconstitutional, monetary damages under s. 24(1) of the Charter would not be an available remedy on the facts pleaded: see Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13.

[39] The second alleged breach of s. 7 stems from the claim that funding led to bullying of the plaintiff. However, the plaintiff has not established a causal connection between the state’s provision of funding and any infringement of her security of the person. Rather, the alleged cause of the harassment resides with Halton Healthcare, for which the moving defendants bear no liability.

[40] The third alleged breach is the claim that the Crown or the LHIN failed to implement unspecified province-wide standards in the provision of mental health services. This claim does not disclose a reasonable cause of action. It is instead a request for the court to determine social policy in the mental health context.

[41] Section 7 of the Charter does not place a positive obligation on the Crown to ensure that each person enjoys “life, liberty or security of the person”. Rather, s. 7 restricts the state’s ability to deprive people of these s. 7 interests: see Tanudjaja v. Canada (Attorney General), 2013 ONSC 5410, aff’d 2014 ONCA 852, leave to appeal ref’d [2015] S.C.C.A. No. 39.

[42] The plaintiff has not pleaded any material facts that would support a finding that her life, liberty or security of the person have been infringed by the Crown in respect of any of the three Charter allegations. There is no basis for any s. 7 Charter claim.

b) Section 8 Charter Claim

[43] Section 8 of the Charter protects against unreasonable search and seizure. However, there is no reasonable expectation of privacy as between the plaintiff and her health care providers: see C.B. v. Sawadsky, [2005] O.J. No. 3682 (S.C.J.).

[44] There is no basis for any s. 8 Charter claim.

c) Section 9 Charter Claim

[45] Section 9 of the Charter protects against arbitrary detention. Involuntary detention, pursuant to the Mental Health Act, constitutes a detention for the purposes of s. 9, but it is not arbitrary. It is remedial and permitted only to the extent necessary to determine whether a person’s mental health may put the safety of the person (or others) at risk, and to provide the public health care necessary to remove that risk of harm: see Thompson v. Ontario (Attorney General), 2016 ONCA 676; C.B. v. Sawadsky.

[46] During oral submissions, the plaintiff conceded that she was not arbitrarily detained and stated she was no longer pursuing a claim under s. 9 of the Charter. This was an appropriate concession. There is no basis for any s. 9 Charter claim.

d) Section 12 Charter Claim

[47] Section 12 of the Charter protects against cruel and unusual treatment or punishment. This will only be met in rare and exceptional circumstances, when the treatment is grossly disproportionate to what would be appropriate, so as to outrage standards of decency: see Deep v. Ontario.

[48] The plaintiff has pleaded no facts that would violate this standard. There is no basis for any s. 12 Charter claim.

IV. CONCLUSION

[49] The plaintiff does not have a cause of action against the moving defendants. It is plain and obvious that the claim is certain to fail.

[50] As a result, the Court makes the following orders in relation to the claims advanced against the Mississauga Halton Local Health Integration Network and Her Majesty the Queen in Right of Ontario (named as the Ministry of Health and Long-Term Care):

i. The claim is struck as against the LHIN and the Crown, without leave to amend; ii. The Notice of Constitutional Question is struck without leave to amend; and iii. The action is dismissed as against the LHIN and the Crown.

V. COSTS

[51] In the event that the parties cannot agree as to costs, they are directed to provide written submissions. The submissions shall be no longer than two typed pages, double-spaced, in addition to any relevant Bill of Costs. The Crown and the LHIN shall provide costs submissions by July 31, 2017; and the plaintiff shall provide any response by August 25, 2017. In the event that submissions are not received from either party by August 25, 2017, costs shall be deemed settled.

Braid, J. Released: July 10, 2017