COURT FILE NO.: CV-21-208 DATE: 20240801

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANNA McKEE Plaintiff – and – DR. RAHEEL SHAHID and DR. GUNTER LORBERG Defendants

Counsel: Matthew Giesinger for the Plaintiff Kathryn E. Ball for the Defendants

HEARD: May 30, 2024

RULING ON MOTION TO STRIKE

C. BOSWELL J.

I.

[1] Bradley McKee stabbed his father, William, to death on February 11, 2019. The attack took place in the family home in Penetanguishene, Ontario. Bradley [1] was convicted by a jury of first-degree murder on November 17, 2022.

[2] Bradley had a history of addiction and mental health challenges, as well as interactions with the criminal justice system.

[3] In this proceeding, the plaintiff, Anna McKee, who is Bradley’s mother and William’s widow, sues two psychiatrists who treated or assessed Bradley in a period of time proximate to the murder. She claims she has suffered damages as a result of the negligence of each of the defendants. She seeks $1.5 million in compensation.

[4] The plaintiff pleads that each of the defendants owed certain duties of care to third parties, including William. Though the Statement of Claim is not particularly clear as to the contours of the duties, reading the claim generously, it appears the assertion is that duties of care were owed by the defendants to Anna and William to (1) provide competent medical care to Bradley; and (2) to warn them of the significant risk that Bradley posed to their safety.

[5] The defendants move to strike the claim in its entirety under r. 21.01(1)(b), or alternatively under r. 25.11, of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, without leave to amend. The defendants assert that Canadian tort law does not recognize either of the alleged duties of care. In the result, the defendants say, it is plain and obvious that the plaintiff’s claim cannot succeed against them. In any event, even if there is a chance that one or the other of the alleged duties might be recognized, the Statement of Claim lacks sufficient factual detail to support it.

[6] The plaintiff’s position is that Canadian tort law does recognize duties of care owed by the defendants to both her and her husband to appropriately treat their son and to warn them of any danger he posed to them. In the alternative, the plaintiff submits that the court ought to recognize the alleged duties in the particular circumstances of this case. Given the novel nature of her claims, neither, she says, should be summarily terminated on the basis that it is plain and obvious that it cannot succeed.

[7] The way the motion has been framed and argued, the issues for the court to determine are:

(i) Is it plain and obvious that the defendants did not owe a duty of care to the plaintiff or her husband, William, to avoid causing harm to them through the negligent care of their son? I would answer this question in the affirmative and strike that aspect of the plaintiff’s claim;

(ii) Is it plain and obvious that the defendants did not owe a duty of care to warn the plaintiff or her husband, William, of the danger that Bradley posed to them? I would answer this question in the negative; and

(iii) If it is not plain and obvious that the plaintiff’s claim cannot succeed, has it been properly pleaded? I would answer this question in the negative and strike the balance of the plaintiff’s claim, but with leave to re-plead.

II.

The Governing Principles

[8] The defendants’ motion is advanced under both rules 21.01(1)(b) and 25.11. Those rules have similar purposes. They are both designed to weed out untenable claims at an early stage.

Motions Under r. 21.01(1)(b)

[9] Rule 21.01(1)(b) provides as follows:

21.01(1) A party may move before a judge,

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence.

[10] The principles to be applied on a motion to strike out a claim under r. 21.01(b) are well-settled.

[11] Whether a pleading should be struck depends on whether it is plain and obvious that it discloses no reasonable cause of action or defence. In other words, that it has no reasonable prospect of success. See Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at para. 33.

[12] Rule 21.01(1)(b) provides a law-based mechanism for disposing of a claim. In other words, motions initiated under the rule engage an inquiry as to whether, as a matter of law, it is plain and obvious that the plaintiff’s claim cannot succeed. Because the motion involves a law-based inquiry, no evidence is admissible in support of it. Instead, the motions judge is to assume that all of the allegations set out in the claim are true, unless patently ridiculous or incapable of proof, and determine, on the basis of those allegations, if it is plain and obvious that the claim cannot succeed. See Frank v. Legate, 2015 ONCA 631 at para. 36.

[13] The court must read the claim generously and make allowances, if necessary, for drafting deficiencies. See Nash v. Ontario, [1995] O.J. No. 4043 (C.A.), at para. 11.

[14] Matters should not be disposed of that are not fully settled in the jurisprudence. If the claim has some chance of success, it should be permitted to proceed. See Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, at para. 14. Indeed, as former Chief Justice McLachlan held in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at para. 21,

The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions... Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

Motions Under r. 25.11

[15] Rule 25.11 provides:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court.

[16] As I understand the defendants’ position, an order striking the plaintiff’s claim under r. 25.11 is sought as an alternative to relief under r. 21.01(1)(b). In particular, should the court conclude that the law is not entirely settled and that the plaintiff’s claim has at least some chance of success, in whole or in part, the defendants submit that the claim should nevertheless be struck on the basis that the plaintiff has failed to reach the minimum level of fact disclosure to support the relief sought. As such, it may prejudice or delay the fair trial of the action.

[17] Rule 25.06(1) provides that every pleading is to contain a concise statement of the material facts on which the party relies, but not the evidence by which those facts are to be proved. Where the minimum level of fact disclosure has not been reached, the pleading is irregular and should be struck. See Copland v. Commodore Business Machines (1985), 52 O.R. (2d) 586 (S.C.).

[18] Unlike motions under r. 21.01(1)(b), evidence is admissible on a motion brought under r. 25.11 provided it is relevant to the test to be applied under that rule. See Baradaran v. Alexanian, 2016 ONCA 533 at paras. 15-16.

The Claims Advanced

[19] The plaintiff seeks damages against the defendants in the amount of $1,200,000 for the loss of William’s guidance, care and companionship, pursuant to s. 61(2) of the Family Law Act (“FLA”), $150,000 for nervous shock or mental distress, and $150,000 in aggravated damages.

[20] The claim advanced under the FLA is a derivative claim. Pursuant to s. 61 of the FLA, a spouse of someone killed by the fault or neglect of another, under circumstances where the deceased would have been entitled to recover damages [2] if not killed, has a claim to recover their pecuniary losses from the person against whom the deceased would otherwise have had a claim. In other words, the section entitles Anna to seek damages from the defendants, provided that William would have been entitled to recover damages against the defendants. Accordingly, the viability of this claim for damages rests on the ability of the plaintiff to establish, amongst other things, that the defendants owed a duty of care to William.

[21] The claim for damages for nervous shock and mental distress and the claim for aggravated damages are both direct claims which will require the plaintiff to establish, amongst other things, that the defendants directly owed her a duty of care.

[22] It is not made clear in the pleadings how the claim for aggravated damages differs from the claim for damages for mental distress and nervous shock. Both are compensatory claims, assessed as part of general damages. Both appear to arise from the same circumstances.

[23] Aggravated damages have been described by the Supreme Court as being aimed at compensation but taking into account intangible injuries such as distress and humiliation caused by the defendant’s behaviour. See Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085, at para. 16. See also C.U. v. Carson, 2024 ONSC 3417, at para. 28. It appears to me that the claims for aggravated damages and for mental distress are overlapping. That said, nothing turns on the overlapping nature of the claims for the purposes of the motion before the court. The central issue on the motion is whether the law recognizes, or should recognize, the requisite duties of care to support the plaintiff’s direct and derivative claims.

The Facts as Pleaded

[24] The plaintiff, as I noted, is the mother of Bradley and the widow of William.

[25] The defendant, Dr. Raheel Shahid, is a psychiatrist with privileges at Waypoint Centre for Mental Health Care (“Waypoint”).

[26] The defendant, Dr. Gunter Lorberg, is a psychiatrist who has privileges at Central North Correctional Centre (“CNCC”) in Penetanguishene and at Ontario Addiction Treatment Centres (“OATC”) in Barrie.

[27] Bradley’s mental health symptoms began to emerge in 2008 when he was roughly 16 years of age. Over the next ten years, he was diagnosed with a variety of mental health issues including, amongst others, a learning disability, anxiety, depression, substance abuse, opiate dependency, substance-induced mood disorders, suicidal thoughts, panic disorder, unspecified personality disorder, and borderline antisocial personality.

[28] Bradley has a long history of self-harm, including three suicide attempts, as well as aggressive behaviour towards others. He was charged with assaulting a police officer and both of his parents in 2016.

[29] While in custody at CNCC following an assault of his mother, Bradley was assessed by Dr. Lorberg, who found that Bradley had an anxiety disorder, an over-reliance on Benzodiazepines and a serious opioid addiction problem. Dr. Lorberg nevertheless recommended against long-term care.

[30] Bradley was subsequently charged in 2017 for impaired operation of a motor vehicle. He was released on bail. One of the conditions of his release was that he reside, on a house arrest provision, with his parents, who signed on to be his sureties.

[31] On November 24, 2018, while still on bail, Bradley got into a conflict with his parents. The police were called. They observed Bradley to be screaming at his parents while holding knives. He had apparently threatened to kill himself with the knives. He was apprehended under the Mental Health Act and transported to the Georgian Bay General Hospital (“GBGH”). The next day he was transferred to Waypoint with a recommendation that he be admitted to long-term care. He was discharged the next day.

[32] November 25, 2018 was the fifth time in less than three years that Bradley had been admitted to Waypoint’s Acute Assessment Program.

[33] On November 30, 2018, Bradley had an appointment with Dr. Lorberg at OATC. When he returned home, he was acting bizarre. He went for a walk and did not return. His parents called the police. He was located by OPP officers in a forest, having overdosed on Methadone and Clonazepam. He was conveyed to GBGH, where he remained for twelve days. He was then transferred to Waypoint on December 12, 2018.

[34] The plaintiff and her husband wrote a letter to Waypoint on December 12, 2018 outlining Bradley’s struggles with addiction and mental health and they pleaded that he be admitted to Waypoint for a prolonged period. They noted that his mental health was seriously deteriorating and that he was paranoid and becoming increasingly delusional. He expressed a belief, for instance, that the Chinese government was spying on him and that his parents were conspiring against him.

[35] Dr. Shahid was the attending psychiatrist at Waypoint on December 12, 2018. He discharged Bradley that same day.

[36] Thereafter, Bradley continued to have weekly appointments with Dr. Lorberg at OATC. On January 25, 2019 he was provided with a letter by OATC expressing concerns about assaultive behaviour he was displaying while attending the clinic.

[37] On February 11, 2019, Bradley experienced a psychotic episode while at home with his parents. He stabbed his father in the neck with a knife, fatally wounding him. He then stabbed himself. The police were called. Bradley was tasered and taken into custody.

The Allegations of Negligence

[38] The tort of negligence provides a mechanism of recovery for parties who suffer injuries caused by someone else’s failure to meet a reasonable standard of behaviour recognized by the law as owing to the injured party.

[39] To succeed with a negligence claim, a plaintiff must be able to establish four essential elements: (1) that the defendant owed him or her a duty of care to avoid the kind of loss alleged; (2) the defendant's conduct breached that duty by failing to observe the applicable standard of care; (3) the plaintiff sustained compensable damage; and (4) the damage was caused, in fact and in law, by the defendant's breach”. See Saadati v. Moorhead, 2017 SCC 28, at para. 13.

[40] The focus, on this motion, is whether, as a matter of law, the defendants arguably owed the plaintiff a duty of care in the circumstances.

[41] The plaintiff describes the defendants’ alleged duty of care at paragraph 29 of the Statement of Claim as follows:

29. The Defendants owed a duty of care to third parties, specifically the deceased, William, arising out of the reasonable foreseeability of harm resulting from an error or omission.

[42] The duty of care is, thus, stated rather broadly in the Statement of Claim. Considering the claim generously, however, it seems to me that the circumstances said to have given rise to the duties of care asserted here are a little more specific. In particular, Bradley was a person with a history of significant mental illness and who had a demonstrated propensity for violence. I believe the plaintiff’s assertion is really that a psychiatrist, treating a potentially violent patient with significant mental illness, owes two duties of care to the family members of that patient, with whom he resides: (1) to provide diligent and prudent care to that patient; and (2) to warn the family members if the patient presents a clear and imminent danger to them.

[43] The applicable standard of care is not pleaded but presumably it includes a requirement that the defendants conduct themselves as a prudent and diligent doctor would in the circumstances.

[44] The plaintiff alleges that the defendants breached the applicable standard of care by, amongst other things:

(a) Failing to monitor or appropriately prescribe medications to Bradley; (b) Prescribing medications that exacerbated his conditions, leading to psychosis, posing a risk to himself and others; (c) Failing to recognize the severity of Bradley’s condition; (d) Failing to admit Bradley to long-term, in-patient care and by discharging him when it was contraindicated; (e) Failing to follow up, monitor or care for Bradley during his time in the community; (f) Failing to change the course of Bradley’s treatment when it was apparent that his prescribed treatment was ineffective; (g) Failing to take reasonable steps to ensure that Bradley was transferred to a hospital with the equipment needed to provide adequate care to him; (h) Failing to refer the plaintiff and her husband to appropriate specialists; (i) Failing to properly consider, review, circulate or respond to information provided to them by the plaintiff and her husband regarding Bradley’s condition; and (j) Failing to warn and protect third parties regarding the risk posed by Bradley.

[45] Having set out the nature of the claims being advanced by the plaintiff and the facts pleaded in support of those claims, I will turn to the issues raised by the parties.

III.

Discussion

Issue One: Is it plain and obvious that the defendants did not owe a duty of care to Anna and William to avoid causing harm to them through the negligent care of their son?

[46] There is no question that physicians owe a duty of care to their patients. Physicians must conduct themselves in accordance with the conduct of a prudent and diligent doctor in the circumstances. See ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 33.

[47] Bradley was the defendants’ patient. He is not a plaintiff in this action.

[48] The plaintiff and her husband were not patients of either of the defendants. They were, however, Bradley’s parents and his sureties and he resided full-time with them. The facts, as pleaded, support the conclusion that Bradley had profound mental health issues and that he had a propensity to act out violently at times. The plaintiff’s claim therefore raises the question of whether a treating or assessing psychiatrist may owe a duty of care to Bradley’s parents in the circumstances, to ensure they provided prudent and diligent care to Bradley.

[49] The first step when a duty of care is alleged is to determine if the proposed cause of action fits within an established category of relationship recognized as giving rise to a duty of care. If it is a type of claim that has already been recognized as giving rise to a duty of care, or is analogous to such a claim, a prima facie duty of care will arise. See Paxton v. Ramji, 2008 ONCA 697, at para. 30.

[50] The plaintiff says that Canadian tort law has recognized that a duty of care is owed by a treating psychiatrist to the family members of a patient suffering from mental illness, and with a tendency towards violent conduct, to provide prudent and diligent care to the patient, so as not to create or increase a risk of harm to the family members. In support of this position, the plaintiff cites Ahmed v. Stefaniu, [2006] O.J. No. 4185 (C.A.).

[51] In Ahmed, a finding of negligence was made at trial against a psychiatrist who determined that the status of an involuntary patient should be changed to voluntary. The patient was soon released from care and not long thereafter murdered his sister. The plaintiffs were the husband and daughters of the deceased. At trial, the jury found the psychiatrist to have been negligent and assessed damages against him. On appeal, the Court of Appeal for Ontario found that the psychiatrist had not been negligent and dismissed the action. A duty of care appears to have been presumed at trial. The issue was not contested at trial or on appeal.

[52] In my view, Ahmed cannot support a conclusion that a duty of care, of the nature asserted here, has been recognized in the jurisprudence. Indeed, the nature of the duty of care and the basis for it appear not to have been subjected to any legal consideration in the case at all. See Paxton, at para. 58.

[53] No other cases were cited by the plaintiff as directly recognizing the duty of care asserted here, nor were any purportedly analogous cases cited.

[54] The plaintiff asserts that if the court is not satisfied that the alleged duty of care has been recognized in Ahmed, the court should approach her claim as a novel one and engage in what is conventionally referred to as the Anns/Cooper analysis, which I will describe momentarily, to determine if the duty of care is one that the court should recognize. See Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, at para. 22.

[55] The defendants’ position is that an Anns/Cooper analysis is not required because it is settled law that a healthcare professional does not, under any circumstance, owe a duty of care to a non-patient third party. In other words, their position is that the jurisprudence recognizes, categorically, that physicians do not owe a duty of care to non-patient third parties in relation to the care they provide to a patient. In support of that position, they rely on the recent decision of Corthorn J., in Alafi v. Lindenbach, 2022 ONSC 1435, where she held, at para. 73:

The issue of whether a healthcare professional owes a duty of care to a non-patient third party is a matter of law which has been fully resolved in the jurisprudence.

[56] To be more precise, Corthorn J. concluded that healthcare professionals do not owe a duty of care to non-patient third parties, on the basis of jurisprudence that included Syl Apps, as above, Paxton v. Ramji, as above, and Wawrzyniak v. Livingstone, 2019 ONSC 4900.

[57] Further support for Justice Corthorn’s conclusion is offered by the decision in Ovari v. Brant Community Healthcare System, 2023 ONSC 6933, 2023 ONCS 6933, where Broad J. held, at para. 40:

It is clear from the jurisprudence that a healthcare professional does not owe a duty of care to a non-patient third party, including a close family member or substitute decision-maker, as the recognition of such a duty would have the potential to put the professional in a conflict of interest because the wishes of a close family member or substitute decision-maker may not align with the healthcare professional's medical opinion of what is in the patient's best interests (see Wawrzyniak v. Livingstone, 2019 ONSC 4900 at paras. 370-371 and Alafi v. Lindenbach, 2022 ONSC 1435 at paras. 60-63 and 73).

[58] I do not agree that appellate jurisprudence goes so far as to categorically preclude the recognition of a duty of care between a physician and a non-patient third party. Because I part ways with the views of some of my colleagues, I will take a moment to briefly consider each of the decisions relied upon by Corthorn J. in Alafi to support the conclusion reached in that case.

Syl Apps

[59] Syl Apps involved the apprehension of a child, R.D., from her parents’ home by a local Children’s Aid Society. R.D. was found to be in need of protection. She was initially placed in foster care but eventually ended up at Syl Apps, a secure treatment facility in Oakville, Ontario. She was ultimately made a Crown ward.

[60] R.D.’s parents, grandmother and three siblings sued Syl Apps and B.D., who was R.D.’s social worker at the facility. They asserted that the defendants’ negligent treatment of R.D. resulted in R.D.’s estrangement from her family. The defendants moved to strike the plaintiff’s claim under r. 21.01(1)(b) on the basis that the defendants did not owe a duty of care to the plaintiffs.

[61] Abella J., for a unanimous court, held that the claim should be struck as the defendants did not owe a duty of care to the plaintiffs in the circumstances.

[62] Abella J. proceeded on the basis that a duty of care, like that asserted by the plaintiffs, had never been recognized in Canadian tort law. In the result, she conducted the analysis directed by Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), adopted by the Supreme Court of Canada in Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2, subsequently refined in Cooper v. Hobart, [2001] S.C.R. 537, and confirmed in Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643. As I noted, this analysis is conventionally referred to as the “Anns/Cooper” test.

[63] The Anns/Cooper test has two parts. The first is a proximity analysis. It requires the court to determine if there is a prima facie duty of care based on the factors of reasonable foreseeability and proximity. If a consideration of these factors leads to the conclusion that there is a prima facie duty, then the court must consider, at part two of the test, whether there are nonetheless public policy reasons for not imposing the duty.

[64] Even though public policy is the main consideration at part two of the test, trial courts are also directed to consider policy issues in the context of the proximity analysis. In the proximity context, the relevant questions of policy relate to factors arising from the particular relationship between the plaintiff and the defendant(s). See Syl Apps, at para. 32.

[65] In Syl Apps, Abella J. held that, even if harm to the plaintiffs was a reasonably foreseeable consequence of the negligent treatment of R.D., the alleged duty of care failed at the proximity stage, for reasons of policy. In particular, Abella J. found that the defendants had a statutory duty to act in the best interests of R.D. Any finding that a duty of care was owed to the plaintiffs created a potential for “serious and significant conflict with the defendants’ transcendent duty to promote the best interests, protection and well-being of the children in their care.” See Syl Apps, at para. 41.

[66] Abella J. observed, moreover, that the defendants’ role was to provide services to R.D. in a treatment context, one which “invoked medical paradigms of confidentiality and privacy”. She noted that “numerous courts have recognized that a doctor does not owe a duty of care to the parent of his or her patient because that would create a situation of conflicting duties of care.” See Syl Apps, at para. 54.

Paxton

[67] Dawn Paxton was prescribed the acne treatment drug, Accutane, by Dr. Shaffiq Ramji. The drug is known to cause fetal malformation. Dr. Ramji understood that Ms. Paxton would not become pregnant because her husband had undergone a vasectomy more than four years prior. The vasectomy failed. Ms. Paxton became pregnant. She gave birth to J.P. who was born with a number of severe disabilities. J.P. sued for damages. Ms. Paxton, her husband and J.P.’s siblings brought derivative claims under the FLA.

[68] The trial judge ruled that Dr. Ramji owed a duty of care to J.P. at the time he was treating her mother, Ms. Paxton. She nevertheless found that Dr. Ramji had not breached the standard of care applicable to J.P. The claim was dismissed.

[69] J.P. appealed the result. Dr. Ramji appealed the finding that he owed a duty of care to J.P.

[70] Despite having the benefit of Syl Apps, Feldman J.A., for a unanimous panel, did not conclude that it was settled law that a duty of care could never be owed by a physician to a non-patient third party. Indeed, to the contrary, she held, at para. 53:

Having reviewed these authorities, I believe it is fair to say that there is no settled jurisprudence in Canada on the question of whether a doctor can be in a proximate relationship with a future child who was not yet conceived or born at the time of the doctor’s impugned conduct.

[71] Feldman J.A. accordingly went on to consider whether there was an existing category of recognized relationship that might be extended by analogy to impose, or refuse to impose, a duty of care on a doctor to a future child of the doctor’s female patient. She worked through – and rejected – several potential categories. One was the duty of care that a doctor may owe to a non-patient third party for harm arising out of the doctor’s treatment of a patient. She cited several cases in support of such a duty of care but noted that, in each of those cases, “the nature of the doctor’s duty of care to the third party and the legal basis for imposing a duty of care were not fully developed.” See Paxton, at para. 58. On that basis, she found that these cases did not establish a basis for an analogous category between a doctor and a future child, if viewed as a third party, non-patient.

[72] In the result, Feldman J.A. went on to apply the Anns/Cooper test. Like Abella J. in Syl Apps, she concluded, at para. 66, that the case stalled at the proximity analysis, and for a similar policy reason:

The prospect of conflicting duties is similarly present here. If a doctor owes a duty of care to a future child of a female patient, the doctor could be put in an impossible conflict of interest between the best interests of the future child and the best interest of the patient in deciding whether to prescribe a teratogenic drug or to give the patient the opportunity to choose such a drug.

Wawrzyniak

[73] Douglas DeGuerre was an elderly gentleman with very serious health issues. He was a patient at Sunnybrook Hospital in September 2008, during the last days of his life. He was incapable of making health decisions for himself. His daughter, Elizabeth Wawrzyniak, a registered nurse, was his substitute decision-maker.

[74] Ms. Wawrzyniak requested that a full range of resuscitative interventions be applied in the event her father went into cardiac or respiratory arrest. However, two Sunnybrooke doctors – Dr. Livingstone and Dr. Chapman (the “defendants”) – each separately assessed Mr. DeGuerre’s condition and each concluded he was close to death and would not benefit from resuscitation. They jointly signed a “do not resuscitate” (“DNR”) order.

[75] Mr. DeGuerre went into respiratory distress on September 22, 2008. His daughter asked for help and urged hospital staff to attempt to resuscitate him. Dr. Chapman responded and explained that CPR would not benefit her father and would only cause him suffering. It was not applied and Mr. DeGuerre died.

[76] Ms. Wawrzyniak sued the defendants for damages under the FLA to compensate her for the loss of guidance, care, and companionship that she might have received from her father had he not died as a result of the defendants’ purported neglect. She also claimed damages for severe mental distress she alleged was caused to her by the breach of the duty of care the defendants owed to her father. Finally, she claimed damages arising from negligent infliction of nervous shock and breach of fiduciary duty. She alleged, in relation to this last claim, that the defendants owed her a duty of care and a fiduciary duty.

[77] The trial judge, Cavanagh J., found that while the defendants owed Mr. DeGuerre a duty of care, they did not in any way breach the applicable standard of care in all the circumstances. That conclusion brought an end to the plaintiff’s FLA claim.

[78] Cavanagh J. went on to find that the defendants did not owe a duty of care directly to Ms. Wawrzyniak. He considered Paxton and Syl Apps and observed that they support the conclusion that where a duty claimed as owed to a non-patient third party would potentially conflict with the duty owed by a physician to a patient, proximity is not made out. He concluded, at para. 371, that “proximity is not made out because a duty of care owed to a person in the position of the plaintiff would potentially conflict with the doctors' overarching duty of care owed to their patient.”

[79] Having considered the cases cited to me by the defendants’ counsel, it is my view that it goes too far to say, categorically, that the law in Ontario is fully resolved as to whether a healthcare professional may ever owe a duty of care to a non-patient third party. That does not appear to have been the approach taken by the Court of Appeal in Paxton. Moreover, in Syl Apps, while Abella J. adopted a categorial approach to the rejection of a duty of care owed to non-patient third parties, she did so in a very limited way, saying, at para. 20:

…I also agree with Sharpe J.A. that “the duty of care pertaining to the relationship between children in need of protection and those who are charged with their care should be clearly defined on a categorical basis, rather than being left in a fluid state to be decided on a case-by-case basis.”

[80] Abella J. did not suggest that a health care provider could never be found to have a duty of care to a non-patient third party, save in the child protection context.

[81] I appreciate that the decisions of my colleagues in Alafi and Ovari would suggest that the possibility of a duty of care being owed by a physician to non-patient third parties has been categorically eliminated. Horizontal precedent – the application of stare decisis – may arguably compel me to follow those decisions. But in my view, they are based on a misinterpretation of Syl Apps and Paxton and in the result, I consider myself bound by the vertical precedents of those appellate decisions.

[82] That said, I would think that, in most cases, the claims of non-patient third parties will fail, for policy reasons, at the proximity analysis of the Anns/Cooper test, for the reasons set out in Syl Apps, Paxton and Wawrzyniak. And that is the outcome in the instant case. So, in the final analysis, even if I am wrong in my conclusion that appellate courts have not categorically rejected any possibility of a duty of care being owed by a physician to a non-patient third party, I would reject the reasonable prospect of it arising in this case.

[83] I will take a moment to explain my views regarding the application of the Anns/Cooper test here.

[84] The first part of the test is the proximity analysis. It begins with a consideration of whether there is a prima facie duty of care based on the factors of reasonable foreseeability and proximity. I will consider those factors in turn.

(i) Reasonable Foreseeability

[85] I accept that it is reasonably foreseeable that a failure, on the part of a treating psychiatrist, to provide diligent and prudent care to a mentally ill patient with violent tendencies, may result in harm to those close to the patient, particularly family with whom he or she resides. Frankly, I think a risk of harm to those close to the patient may be reasonably foreseeable even if the psychiatrist provides diligent and prudent care.

(ii) Proximity

[86] Assessing proximity involves asking whether the parties are in such a close and direct relationship that it would be “just and fair having regard to that relationship to impose a duty of care in law”. See Deloitte & Touche v. Livent Inc., 2017 SCC 63, at para. 25. Asked another way, are the circumstances of the relationship between the parties “of such a nature that the defendant may be said to be under an obligation to be mindful of the plaintiff’s legitimate interests in conducting his or her affairs.” See Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165, at para. 24.

[87] There are certainly aspects of the factual circumstances here that tend to support a relationship of significant proximity between the defendants and Bradley’s parents. That said, the proximity analysis fails, as it did in the Syl Apps and Paxton cases, as a result of policy considerations. More specifically, as a result of the conflicting duties that would arise if a duty of care were found to be owed to Bradley’s parents in relation to the defendants’ assessment and treatment of Bradley.

[88] If the defendants were found to have a duty of care to Bradley’s parents, they would be placed in an impossible conflict of interest in making decisions about Bradley’s future care. Quite apart from the possibility of intrusion into Bradley’s privacy interests, Bradley’s interests in terms of prescribed medications and courses of treatment may well conflict with his parents’ interests in what medications he ought to be taking and what course(s) of treatment he ought to be following.

[89] No more glaringly is this potential conflict evident than with the question of whether Bradley should have been the subject of long-term, residential care. His parents urged the defendants to keep Bradley in a long-term residential treatment program, even if that meant doing so against his will. But Bradley, of course, has a very strong interest in his liberty. And medical practitioners may only interfere with that liberty in limited circumstances.

[90] I agree with jurists in other cases who have recognized the chilling effect that recognition of a duty of care owed to non-patient third parties may have on physicians. Psychiatrists may be loathe to take on patients with certain conditions – specifically ones that pose a potential danger to third parties – if they were to be subject to claims against them by non-patients for decisions made or not made in the course of caring for the patient.

[91] Patients with mental illnesses may also be dissuaded from seeking out psychiatric care, if they know that their treating psychiatrist is going to be making decisions about their care with regard to how those decisions may impact on third parties. Patients and society at large will both suffer in the result.

[92] I have considered whether the proximity analysis might best be conducted at a trial, on a full evidentiary record. I have concluded that a full evidentiary record will not make a difference to the outcome. The conflict of interest is palpable. It dictates that the plaintiff has no reasonable chance of success in establishing that the defendants owed her and William a duty of care in relation to their treatment of Bradley.

[93] In my view, it is clear that the defendants did not, in the circumstances, owe a duty of care to the plaintiff or her husband, in terms of the treatments prescribed or not prescribed to Bradley. It is, in the result, plain and obvious that the plaintiff’s claim for damages, insofar as it relies on a finding of negligent care of Bradley, cannot succeed and should be struck.

[94] I will go on to consider the asserted duty to warn.

Issue Two: Is it plain and obvious that the defendants did not owe a duty of care to warn the plaintiff or her husband, William, of the danger that Bradley posed to them?

[95] The dispute again focuses on whether the law recognizes the duty of care asserted by the plaintiff. In other words, does Canadian tort law recognize a physician’s duty to warn certain persons when the physician becomes aware that the patient poses a danger to those persons? More specifically perhaps, does a treating psychiatrist have a duty to warn the parents of a mentally ill patient, with whom the patient resides, of a risk of harm posed by the patient to the parents?

[96] The parties’ positions are polar opposites and simply stated.

[97] The defendants argue that no such duty to warn exists in Canadian tort law and, as such, the plaintiff’s claim – to the extent that it is based on a duty to warn – should be struck. Even if the court concludes, after a consideration of the Anns/Cooper test, that it is not plain and obvious that a duty to warn will not be recognized, the plaintiff’s claim should still be struck, the defendants submit, because it lacks sufficient particularity to support a finding that a duty to warn arose in this case.

[98] The plaintiff submits that a duty to warn has been recognized in analogous circumstances in Canadian tort law, citing, in particular, Childs v. Desormeaux, as above. Even if the court does not find the Childs decision to be analogous, the plaintiff contends that, on an application of the Anns/Cooper test, it is not plain and obvious that a duty to warn will not be recognized in the circumstances of this case.

[99] Again, the first step in the analysis, where a duty of care is alleged, is to determine if the proposed cause of action fits within an established category of relationship recognized as giving rise to a duty of care.

[100] Counsel did not cite any case where a duty to warn has been imposed on a psychiatrist treating a mentally ill patient, even one with a propensity for violence.

[101] The plaintiff’s counsel submits, however, that Childs v. Desormeaux offers a fair analogy.

[102] Childs is a well-known case that dealt with the issue of social host liability. There, the Supreme Court held that social hosts of parties where alcohol is served do not owe a duty of care to public users of highways. The plaintiff relies on Childs, however, for what the Supreme Court said about three situations in which a positive duty to act has been imposed on a party.

[103] In particular, former Chief Justice McLachlin, who wrote the decision for a unanimous court in Childs, held that “a positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity.” (Para. 34). She observed that three such situations had, to that point, been identified by the court. They include:

(a) Where a defendant intentionally attracts and invites third parties to an inherent and obvious risk that he or she has created or controls. As McLachlin C.J.C. explained, these cases turn on the defendant’s causal relationship to the origin of the risk of injury faced by the plaintiff; (b) Where there is a paternalistic relationship of supervision and control, for instance the relationship between a parent and child or a teacher and student; and (c) Where a defendant exercises a public function or engages in a commercial enterprise that includes implied responsibilities to the public at large. McLachlin C.J.C. noted that the duty of a commercial host who serves alcohol to guests to act to prevent foreseeable harm to third-party users of the highway falls into this category.

[104] The plaintiff’s counsel urged the court to find that this case falls into the third category of case identified by McLachlan C.J.C. The plaintiff submits that the defendants exercised public functions: Dr. Lorberg because he was a staff psychiatrist at CNCC, which is a public institution, and at OATC, which the plaintiff says is a commercial enterprise; and Dr. Shahid because he was a staff psychiatrist at Waypoint, which is a public institution.

[105] I am not persuaded that either Dr. Lorberg or Dr. Shahid exercised a public function or engaged in the type of commercial enterprise that McLachlin C.J.C. referred to in Childs. Instead, it appears to me that they were engaged in a physician-patient relationship with Bradley at all material times. That type of inherently private relationship has, to my knowledge, never been recognized as giving rise to a special duty owed to the public.

[106] I am not, in the result, satisfied that the alleged duty to warn falls either within a recognized duty of care or an analogous recognized duty of care such that one could conclude that a prima facie duty to warn has been made out.

[107] I will accordingly proceed with the Anns/Cooper analysis.

(i) Reasonable Foreseeability

[108] In my view, the question of reasonable foreseeability is straightforward. It was undoubtedly reasonably foreseeable that a failure to warn Bradley’s parents – with whom he resided – that he was unstable and potentially violent (assuming that he was) might be likely to result in injury to the parents.

(ii) Proximity

[109] The question of proximity is more difficult. Whether the plaintiff and her husband had a sufficiently close and direct relationship with the defendants that it would be fair and just that the defendants should owe them a duty of care to warn them of a risk of harm presented by Bradley is debatable.

[110] The question of conflicting duties arises again, as does the confidential nature of the relationship between the defendants and Bradley. These factors tend to suggest, again, that the alleged duty of care should be rejected on policy grounds.

[111] That said, the defendants’ counsel fairly referred the court to the Supreme Court’s decision in Smith v. Jones, [1999] 1 S.C.R. 455. That case involved the question of whether there is a public interest exception to solicitor-client privilege and, by implication, to any other recognized privilege or duty of confidentiality. The Smith decision governs when a physician may disclose otherwise confidential information about a patient for reasons of public safety.

[112] In Smith, the appellant, Jones, was charged with aggravated sexual assault. His lawyer referred him to a psychiatrist, Smith, for a forensic psychiatric assessment. Jones made very disturbing statements to Smith about a violent crime he intended to commit. Smith advised Jones’ counsel that Jones was a violent individual who was likely to commit further crimes. When Smith learned that Jones’ lawyer did not intend to advise the court of his concerns, he sought to do so himself.

[113] The case was analyzed on the basis that solicitor-client privilege attached to Smith’s report. The court was clear that if a public safety exception applies to solicitor-client privilege, then it applies to all classifications of privileges and duties of confidentiality. See Smith, at para. 44.

[114] The court determined that solicitor-client privilege will give way when it is outweighed by public safety concerns. In assessing when those concerns are sufficient to trump privilege, three factors are to be considered: (1) Is there a risk to an identified person or group of persons? (2) Is there a risk of serious bodily harm or death? (3) Is the danger imminent? See Smith, at para. 77.

[115] It seems to me conceivable, at least, that an application of the Smith factors might support a conclusion in this case that one or both of the defendants was justified in releasing confidential information about Bradley’s condition to his parents, or to the police, based on a public safety exception. Whether that justification translates into a duty to disclose or to warn is another matter. But the public policy concerns about confidentiality and the potential for a conflict of interest, critical to the proximity analysis, may be attenuated if there is a public safety exception in play.

[116] The plaintiff’s claim, insofar as it relies on a duty to warn, is a novel one. I am dubious of its likelihood of success for a number of reasons, not the least of which is the fact that Bradley’s parents appear to have been well aware of the risk he posed to himself and others. That said, Imperial Tobacco directs that the court take a generous view of the claim and err on the side of permitting a novel but arguable claim to proceed to trial. I am satisfied that this claim, while novel, and perhaps tenuous, is at least arguable. I would not, therefore strike it on the basis that it is plain and obvious that it cannot succeed.

[117] I will turn then to the final question raised on the motion: whether the claim has been sufficiently particularized.

Issue Three: Has the plaintiff’s claim been properly pleaded?

[118] As I noted above, r. 25.06(1) provides that every pleading is to contain a concise statement of the material facts on which the party relies, but not the evidence by which those facts are to be proved. Where that minimum level of fact disclosure has not been reached, the pleading is irregular and should be struck.

[119] In my view, and considering the ruling in Smith, the duty to warn will only arguably arise where, in relation to each of the defendants:

(1) There is a clear risk to an identified person or group of persons; (2) There is a risk of serious bodily harm or death; and (3) The danger is imminent.

[120] In the result, it is necessary that a claim based on a duty to warn must set out sufficient facts to support each of these three pre-requisites.

[121] Smith provides helpful direction on the types of factors to consider in relation to each of the pre-requisites.

Clarity

[122] A non-exhaustive list of relevant considerations in terms of whether the purported risk is clear includes: whether there is evidence of long-range planning; whether a method of carrying out an attack has been suggested; whether there is a prior history of violence or threats and whether that history is similar in character to the current threat; if there is a history of violence, whether it has been increasing in severity; and whether the violence has been directed at an identified group.

Seriousness

[123] The threat in issue must be such that the intended victim is in danger of being killed or of suffering serious bodily harm.

Imminence

[124] Finally, the threat must be an imminent one – one that creates a sense of urgency. That said, imminence does not necessarily mean immediacy. It requires a case-specific inquiry.

[125] In the case at bar, the plaintiff has set out a significant amount of background information in the Statement of Claim regarding Bradley’s mental health struggles and his increasing paranoia and acting out leading up to February 11, 2019. This background includes a reference to a letter Bradley received from Dr. Lorberg’s office on January 25, 2019 regarding concerns about assaultive behaviour he exhibited while attending the clinic. It does not tie any of that information to a specific threat or risk of serious bodily harm to the plaintiff or her husband.

[126] At para. 30 of the claim the plaintiff alleges the following:

The Defendants knew or ought to have known that Bradley was residing with his parents and that he was an imminent danger to himself and others due to the warnings directly communicated by Bradley’s other treatment providers, his parents, his escalating behaviour, and his medical and criminal history.

[127] Paragraph 30 is very broadly worded and conclusory in nature. I appreciate that the plaintiff may not have access to Bradley’s medical records and may not know exactly what information each of the defendants had at any particular point in time. Even allowing for that information gap, however, I am not satisfied that the claim, as pleaded, provides a sufficient factual basis to support the alleged duty to warn.

[128] In light of the directions provided in Smith, it is not sufficient, in my view, that Bradley may have posed a vague risk to himself or others because of his unstable condition.

[129] In my view, the claim needs to set out a factual basis to support, in relation to each defendant, when and how he became aware of a specific threat to cause serious bodily harm to Anna or William. And it needs to clarify what, in particular, Anna and William ought to have been warned about. And it fails to do so.

Conclusion

[130] In the result, the claim is struck in its entirety. The plaintiff has leave to re-plead the claim in relation to the duty to warn assertion.

[131] The defendants urged the court not to permit the plaintiff to re-plead. The principal argument in support of that position was that the motion to strike had been outstanding for a year and the plaintiff did nothing to amend her deficient claim in the interim.

[132] I am sympathetic to all civil litigants in Ontario when it comes to the delays currently inherent in the system. And perhaps the plaintiff might have been wise to use the time while in the motions queue to tune up the Statement of Claim. Having said that, this is a very serious case, involving the tragic killing of a father by his mentally ill son. The claim raised by the plaintiff is a novel one and the law is not clear on its constituent elements. It is, in my view, in the interests of justice that the plaintiff be permitted to amend the claim and continue to litigate it on its merits.

[133] The parties are strongly encouraged to agree on the costs of the motion. If they are unable to agree, each may make written submissions, not to exceed three pages in length (not including Bills of Costs). They are to be exchanged and filed on a fourteen-day turnaround. The defendants’ submissions are to be served and uploaded to Case Centre by August 15, 2024. The plaintiffs’ submissions are to be served and uploaded to Case Centre by August 29, 2024. Counsel are to email my judicial assistant when documents have been uploaded.

C. Boswell J. Released: August 1, 2024

Notes:

[1] Given the numerous references I will be making to each of Bradley, William and Barbara McKee, I will refer to them by their first names only. I mean no disrespect in doing so.

[2] Damages recoverable under s. 61 include actual expenses incurred for the benefit of the person killed, funeral expenses, travel expenses, an allowance for any nursing or housekeeping services provided, and compensation for the loss of care, companionship, and guidance.