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Torts - Negligence - Government (3). His Majesty the King in Right of Ontario v. Temelkovski
In His Majesty the King in Right of Ontario v. Temelkovski (Div Ct, 2026) the Divisional Court allowed a defendant Crown appeal, that brought against a decision "dismissing the Appellant’s motion under Rule 21.01(1)(b) ['no reasonable cause of action or defence'] of the Rules of Civil Procedure to strike a negligence claim against it".
Here the court usefully contrasts remedies for 'breach of statutory duty' between tort and JR:[63] A mere breach of a statutory duty does not constitute negligence, and the law does not recognize an action for negligent breach of statutory duty against a government authority for negligently acting outside or contrary to the law. The proper remedy for breach of statutory duty by a public authority is judicial review for invalidity. See Holland v. Saskatchewan, 2008 SCC 42 at paras. 8-9, 11 (“Holland”). . His Majesty the King in Right of Ontario v. Temelkovski
In His Majesty the King in Right of Ontario v. Temelkovski (Div Ct, 2026) the Divisional Court allowed a defendant Crown appeal, that brought against a decision "dismissing the Appellant’s motion under Rule 21.01(1)(b) ['no reasonable cause of action or defence'] of the Rules of Civil Procedure to strike a negligence claim against it".
The court considers duty of care in negligence law, here as it relates to public authority defendants:[45] When allegations of negligence are made against a public authority, it is appropriate to examine the negligence claim at the pleading stage to determine whether there is any possibility that a duty of care can be found to exist: see Kassian Estate v. Canada (Attorney General), 2015 ONCA 544 at para. 22.
[46] The Anns/Cooper test provides a unifying framework to determine when a duty of care arises, including for allegations of negligence against government officials. The framework applies differently depending on whether the plaintiff’s claim falls within or is analogous to an established duty of care or whether the claim is novel because proximity has not been recognized before. See Nelson (City) v. Marchi, 2021 SCC 41 at para. 16 (“Nelson”). It has not been argued in this case that the Respondents’ claim falls within an established duty of care.
[47] In novel duty of care cases, the full two-stage Anns/Cooper framework applies. Under the first stage, the court asks whether a prima facie duty of care exists between the parties. The question at this stage is whether the harm was a reasonably foreseeable consequence of the defendant’s conduct, and whether there is a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. See Nelson at para. 17.
[48] Reasonable foreseeability of harm and proximity operate as crucial limiting principles in the law of negligence. They ensure that liability will only be found when the defendant ought reasonably to have contemplated the type of harm the plaintiff suffered. See Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 at para. 21 (“Rankin”).
[49] When determining whether reasonable foreseeability is established, the proper question to ask is whether the plaintiff has offered facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged. The foreseeability question must be framed in a way that links the impugned wrong to the harm suffered by the plaintiff. See Rankin at paras. 24-25.
[50] The parties’ focus in this case was on the proximity requirement. Proximity arises in those relationships where 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 upon the defendant. See Nelson at para. 17. The proximity inquiry considers the expectations, representations, reliance, and the property or other interests involved as between the parties. See Rankin at para. 23.
[51] When the relationship occurs in the context of a statutory scheme, the governing statute is a relevant context for assessing the sufficiency of the proximity between the parties. Where an alleged duty of care is found to conflict with an overarching statutory or public duty, this may constitute a compelling policy reason for refusing to find proximity. Such a conflict exists where the imposition of the proposed duty of care would prevent the defendant from effectively discharging its statutory duties. A statutory immunity provision may also be relevant. See Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 at paras. 27-29 (“Syl Apps”) and River Valley Poultry Farm Ltd. v. Canada (Attorney General), 2009 ONCA 326 at paras. 77, 79; application for leave to appeal to the Supreme Court of Canada dismissed: 2009 CanLII 61385 (S.C.C.).
[52] If there is sufficient proximity to ground a prima facie duty of care, it is necessary to proceed to the second stage of the Anns/Cooper test, which asks whether there are residual policy concerns outside the parties’ relationship that should negate the prima facie duty of care. The second stage of the test raises questions relating to the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. See Nelson at para. 18.
[53] Policy is relevant at both the first stage – in relation to proximity – and at the second stage – in relation to residual policy concerns – of the Anns/Cooper test. At the proximity stage, the relevant questions of policy relate to factors arising from the particular relationship between the plaintiff and the defendant. In contrast, residual policy considerations are concerned with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. See Syl Apps at para. 32.
[54] An important consideration in this case is that the claims are against the government. There are generally two situations that may create a prima facie duty of care in claims against a government defendant: (1) where a duty of care arises explicitly or by implication from the statutory scheme, or (2) where a duty of care arises from specific interactions between the claimant and the government and is not negated by statute. Proximity might also be based both on the government’s statutory duties and interactions between the parties. See Imperial Tobacco at paras. 43, 45, 46, and Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 410 at para. 41; application for leave to appeal to the Supreme Court of Canada dismissed: 2022 CanLII 10379 (S.C.C.).
[55] Although the Respondents’ submissions were mostly focused on the specific interactions between them and the Appellant, the type of situation that has been pleaded in the FASC appears to be the third one, i.e., the duty of care is alleged to arise from both the government’s statutory duties and the interactions between the Respondents and the government.
[56] The argument in the first kind of cases is that the statute itself creates a private relationship of proximity giving rise to a prima facie duty of care. However, it is often difficult to find that a statute creates sufficient proximity to give rise to a duty of care. This is because even though some statutes may impose duties on state actors with respect to particular claimants, statutes are more often aimed at public goods. In such cases, it is usually difficult to infer that the legislature intended to create private law tort duties to claimants. See Imperial Tobacco at para. 44.
[57] In cases based on interactions between the claimant and the government, the argument 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. While the factor that gives rise to a duty of care is the specific interactions between the government actor and the claimant, the governing statute is still relevant to the analysis. For instance, if a finding of proximity would conflict with the state’s general public duty established by the statute, the court may hold that no proximity arises. See Imperial Tobacco at para. 45.
[58] A regulator’s public statements acknowledging its public duties and obligations and its commitment to the performance of those duties, combined with the reliance on those public statements by members of the public affected by the performance of those duties, cannot, standing alone, create a relationship of proximity between individual plaintiffs and the regulator. In other words, a person’s reliance on public representations that the regulator will do its public and statutory duty cannot by itself create a private law duty of care. See Taylor v. Canada (Attorney General), 2012 ONCA 479 at para. 105 (“Taylor”).
[59] Further, ordinary day-to-day regulatory contacts between a government actor and a regulated person are usually insufficient to create a proximate relationship. See Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579 at para. 51; application for leave to appeal to the Supreme Court of Canada dismissed: 2023 CanLII 36978 (S.C.C.). In order to give rise to a private law duty of care, the government actor must have done something more than fulfilling its statutory role in its specific interactions with the plaintiff. This was recognized by the Divisional Court in Eisenberg v. City of Toronto, 2021 ONSC 2776 at para. 52 (“Eisenberg”):[…] In the cases where courts have found that pleaded interactions between a public authority and a plaintiff were sufficient to give rise to a private law duty of care, the courts have found that the public authority has done something more than fulfilling its statutory role. Where the interactions fall within the scope of the public authority’s statutory role, without anything more, those interactions cannot form the basis for finding that the regulator owes a private law duty of care to parties subject to the regulatory oversight. As held by the motion judge, this principle was clearly articulated in Wu v. Vancouver (City), 2019 BCCA 23, at para. 65:While the relationship between the parties can be described as “direct and transactional”, this does not materially advance the proximity analysis because such a relationship is both inherent in and an inevitable and necessary part of the regulatory framework, in which individuals apply for permission to undertake a certain activity. The same applies to virtually any licensing or permitting process. I do not think that the inevitable reality of a specific individual making an application to a regulator, and thereby entering into a direct transactional relationship with the regulator, advances the argument that proximity exists in the sense that the regulator has come under an obligation to have particular regard for the interests of the applicant beyond the regulator’s obligation to fulfil his or her statutory duties. [60] Thus, communications and consultations that are generic and inherent in the regulatory framework are not indicative of a relationship of proximity. See Wu v. Vancouver (City), 2019 BCCA 23 at paras. 58 and 71 (“Wu”); application for leave to appeal to the Supreme Court of Canada dismissed: 2019 CanLII 55721 (S.C.C.), and Flying E Ranche Ltd. v. Attorney General of Canada, 2022 ONSC 601 at para. 615, aff’d on other grounds by 2024 ONCA 72; application for leave to appeal to the Supreme Court of Canada dismissed: 2024 CanLII 96606 (S.C.C.).
[61] In the absence of a proximate relationship, there is no duty of care and no need to consider second-stage policy considerations. The question of whether the challenged decision was of an operational or policy nature belongs at the second stage of the test and is not relevant at the first-stage consideration of proximity. Operational negligence, in the absence of a proximate relationship, is not sufficient to give rise to a duty of care. See Cooper v. Hobart, 2001 SCC 79 at para. 38; Drady v. Canada (Health), 2008 ONCA 659 at para. 34 (“Drady”); application for leave to appeal to the Supreme Court of Canada dismissed: 2009 CanLII 19876 (S.C.C.); and Attis v. Canada (Health), 2008 ONCA 660 at para. 44 (“Attis”); application for leave to appeal to the Supreme Court of Canada dismissed: 2009 CanLII 19874 (S.C.C.).
[62] Similarly, unless the element of proximity is present, public authorities are not liable for losses simply because a legislated standard was not enforced. See Vlanich v. Typhair, 2016 ONCA 517 at para. 30 (“Vlanich”).
[63] A mere breach of a statutory duty does not constitute negligence, and the law does not recognize an action for negligent breach of statutory duty against a government authority for negligently acting outside or contrary to the law. The proper remedy for breach of statutory duty by a public authority is judicial review for invalidity. See Holland v. Saskatchewan, 2008 SCC 42 at paras. 8-9, 11 (“Holland”). At paras 64-80 the court assesses these principles on the facts and pleadings of the case.
. Hartman v. Canada (Attorney General) [concise]
In Hartman v. Canada (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought where "the motion judge struck the Claim [SS: under R21.01(1)(b)] in its entirety on the basis that it was plain and obvious that the Claim had no reasonable prospect of success, even if supplemented with amendments proposed by the appellant".
The court considers the "negligence liability of public authorities", here applying this law to the statutory regime involved:1. Legal principles governing negligence liability of public authorities
[30] The existence of a duty of care is essential to liability in negligence. Whether a public authority owes a private law duty of care is determined on the basis of the so-called “Anns/Cooper” test: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Nelson (City) v. Marchi, 2021 SCC 41, [2021] 3 S.C.R. 55, at para. 16.
[31] The court first determines whether a plaintiff’s claim falls within or is analogous to an established duty of care. If not, the court then applies the following two-stage test: (1) does the relationship between the parties disclose sufficient foreseeability and proximity to establish a prima facie duty of care; and (2) if the answer to the first question is yes, are there any residual policy considerations that negate or otherwise preclude the existence of such a duty. See Cooper, at paras. 30-39; Nelson, at paras. 15-19; and R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 39. The plaintiff bears the burden of establishing a prima facie duty of care. If established, the burden shifts to the defendant to demonstrate countervailing policy considerations sufficient to negate the duty: Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at para. 13.
[32] In considering whether there is sufficient proximity between the parties at the first stage of the Anns/Cooper test, such proximity may arise explicitly or by implication from the statutory scheme and/or from specific interactions between the parties: Imperial Tobacco, at para. 43.
[33] While some statutes may impose duties on public authorities with respect to particular individuals, more often statutes are aimed at public goods and broad policy goals. In such cases it is often difficult to infer that the legislature intended to create private law tort duties towards the plaintiffs. This will be especially true if the recognition of a private law duty would conflict with the public authority’s duty to the public: Imperial Tobacco, at para. 44; Taylor v. Canada (Attorney General), 2012 ONCA 479, 111 O.R. (3d) 161, at paras. 75-78.
[34] Where proximity is said to have arisen from specific interactions between the parties, the plaintiff must factually demonstrate that the government created a special relationship with them through its conduct to establish the necessary proximity. Even if only specific interactions are pleaded to ground proximity, the governing statute remains relevant to the analysis since, if a finding of proximity would conflict with the public authority’s statutory duty, the court may hold that no proximity arises: Imperial Tobacco, at para. 45; Rausch v. Pickering (City), 2013 ONCA 740, 369 D.L.R. (4th) 691, at paras. 45-46, 50-53; and Heaslip Estate v. Mansfield Ski Club Inc., 2009 ONCA 594, 96 O.R. (3d) 401, at paras. 16-20, 28.
[35] If the plaintiff succeeds in establishing a prima facie duty of care at the first stage of the Anns/Cooper test, the onus shifts to the defendant at the second stage to establish residual policy considerations that might limit or negate the existence of such a duty of care. The focus at this stage is not on the relationship between the parties but, rather, on “the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally”: Cooper, at para. 37. In a claim against a government authority, these residual policy concerns may include the potential for the creation of unlimited liability to an indeterminate class and/or the chilling effect on the ability of government to perform its statutory duties, unencumbered by extraneous considerations: Cooper, at paras. 37, 54; Attis v. Canada (Health), 2008 ONCA 660, 93 O.R. (3d) 35, at paras. 73-75, leave to appeal refused, [2008] S.C.C.A. No. 491; and Eliopoulos (Litigation Trustee of) v. Ontario (Minister of Health and Long-Term Care) (2006), 2006 CanLII 37121 (ON CA), 82 O.R. (3d) 321 (C.A.), at paras. 31-33, leave to appeal refused, [2006] S.C.C.A. No. 514.
2. The statutory scheme does not give rise to a private law duty of care
[36] The statutory scheme applicable in this case establishes duties that are owed to the general public rather than to particular individuals or groups. In particular, s. 4(1) of the Department of Health Act, S.C. 1996, c. 8, defines the powers, duties, and functions of the Minister as extending to all matters within federal jurisdiction “relating to the promotion and preservation of the health of the people of Canada”. This includes the promotion and preservation of “the physical, mental and social well-being of the people of Canada”; the protection of “the people of Canada against risks to health and the spreading of diseases”; and “investigation and research into public health, including the monitoring of diseases” (s. 4(2)).
[37] The Minister is assisted in performing these duties by the Public Health Agency of Canada (the “PHAC”), a statutory body whose responsibilities include providing the Minister with “public health advice that is developed on a scientific basis”, that will contribute to “federal efforts to identify and reduce public health risk factors and to support national readiness for public health threats”: Public Health Agency of Canada Act, S.C. 2006, c. 5, Preamble, s. 7(1.1).
[38] Plainly, these statutory references to the Minister’s duty to protect and promote the health of “the people of Canada”, along with the PHAC’s mandate “to identify and reduce public health risk factors and to support national readiness for public health threats”, entail duties to Canadians as a whole, rather than to particular individuals or groups.
[39] The motion judge’s finding that the statutory scheme establishes duties owed to the general public rather than to particular individuals or groups is consistent with a growing body of jurisprudence which has declined to impose private law duties of care in the context of government policy decisions which are made in response to health emergencies impacting the general population.
[40] For example, in Williams v. Ontario, 2009 ONCA 378, 95 O.R. (3d) 401, leave to appeal refused, [2009] S.C.C.A. No. 298, this court upheld an order striking out a negligence claim brought by a surgery patient who had contracted SARS while in hospital during the SARS outbreak in Toronto in the spring of 2003. The plaintiff argued that Ontario had prematurely eased infection control procedures designed to limit the spread of SARS in the province’s hospitals, thereby exposing her to a heightened risk of contracting the disease.
[41] In holding that it was plain and obvious that this claim could not succeed, this court noted that when assessing how best to deal with the SARS outbreak, the provincial government was required to address the interests of the public at large rather than to focus on the interests of the plaintiff specifically, or a class of individuals similarly situated. Sharpe J.A. explained in Williams, at para. 31, that such decisions involve difficult trade-offs between competing interests which often necessarily involve making decisions adverse to some individuals in pursuit of the broader public interest. Even though such decisions might be adverse to the interests of some, they were nevertheless necessary and therefore justified by the interests of the public as a whole:Restrictions limiting access to hospitals or parts of hospitals may help combat the spread of disease, but such restrictions will also have an impact upon the interests of those who require access to the hospital for other health care needs or those of relatives and friends. Similarly, a decision to lift restrictions may increase the risk of the disease spreading but may offer other advantages to the public at large including enhanced access to heath [sic] care facilities. The public officials charged with the responsibility for imposing and lifting such measures must weigh and balance the advantages and disadvantages and strive to act in a manner that best meets the overall interests of the public at large. [Emphasis added.] [42] Endorsing the approach taken in Eliopoulos, the court in Williams held that the public health statutory scheme in Ontario could not ground a duty of care given its focus on the public at large, rather than specific individuals. In furtherance of the general public interest, public officials must “balance ‘a myriad of competing interests’, the nature of which are inconsistent with the imposition of a private law duty of care”: Williams, at para. 25 (emphasis added).
[43] In Abarquez v. Ontario, 2009 ONCA 374, 95 O.R. (3d) 414, leave to appeal refused, [2009] S.C.C.A. No. 297 (a companion case to Williams), this court applied the same reasoning in striking out a claim in negligence brought by nurses and their family members who contracted SARS in 2003. The claim in Abarquez was based on the fact that the province issued legally binding directives to nurses and other healthcare workers requiring them to treat SARS patients. The nurses argued that by issuing these directives, the province created a direct relationship with the nurses sufficient to trigger a common law duty of care to protect them from contracting SARS.
[44] This court found that it was plain and obvious that the claim by the plaintiff nurses was bound to fail. Recognizing a private law duty to the nurses would conflict with the province’s duty to the public at large. The government’s overriding responsibility was to do its best to protect the Ontario public as a whole from the spread of SARS. The province determined that the best way to discharge that responsibility was to issue the directives to nurses and other healthcare professionals requiring them to treat SARS patients, even though it was apparent that this would inevitably expose them to a higher risk of contracting the disease: Abarquez, at paras. 21-29. Such difficult trade-offs were inevitable when dealing with a public health emergency such as SARS. As Sharpe J.A. succinctly explained, “the interests of nurses … cannot be prioritized over the general public interest, yet that would be the effect of finding that they were owed the special consideration in the formulation of health care policy that a private law duty of care would entail”: Abarquez, at para. 28.
[45] In Adam, Abudu v. Ledesma-Cadhit et al, 2014 ONSC 5726, the parents of a 5-year-old girl who died after receiving an H1N1 influenza vaccination brought a negligence claim against the federal government (among other defendants) for failing to sufficiently assess the safety of the vaccine and for promoting the vaccine without advising of the risks of adverse effects and/or death, in particular for patients with hypersensitivities particularly vulnerable to vaccine-related injuries. Approval of the H1N1 vaccine was issued on the basis of an interim order promulgated under s. 30.1 of the FDA, as in the present case.
[46] In her detailed reasons, Chiappetta J. found that the governing statutes, including the FDA, imposed a duty on the government “to promote and protect the health of the entire population”. This responsibility necessarily involves balancing “a multitude of competing interests while identifying and responding to widespread threats to public health”: Adam, at para. 122. At para. 163, Chiappetta J. explained that recognizing a private law duty of care owed to particular classes of individuals would be inconsistent with the duty owed to the public as a whole:Inherent in such a program [of immunization against H1N1] is potential for some individuals to suffer harm – either from contracting the disease or through adverse effects associated with immunization. The Minister exercised his discretion to issue a notice of compliance allowing a manufacturer to sell a prescription drug in Canada. Such actions were aimed at mitigating the health impact on the public of a potential influenza pandemic and cannot attract a private law duty of care. To do so would interfere with sound decision-making in the realm of public health and risk the displacement of public health priorities from the general public interest to the fear or threat of lawsuits. [Emphasis added.] ....
4. Residual policy considerations would have negated any prima facie duty of care
[53] The motion judge was similarly correct in her finding that, even if a prima facie duty of care might have been found to exist, residual policy considerations warranted negating any such duty. As discussed above, not only was it inevitable that some members of the public would be adversely affected no matter what the Minister decided, it was impossible to predict in advance the extent or severity of these adverse impacts. As such, this was a classic case where subjecting government actions to liability in tort carried with it the potential for indeterminate liability to an unlimited class. Both this court as well as the Supreme Court of Canada have emphasized that such unlimited liability weighs against recognizing a novel duty of care: Cooper, at para. 54; Attis, at para. 74; and Eliopoulos, at para. 32. Relatedly, imposing private law duties toward individuals would impair the ability of government decision-makers to make difficult but necessary decisions that advance the general public interest, out of a fear that in so doing they might incur civil liability in relation to persons who might be adversely affected: Attis, at para. 75; Eliopoulos, at para. 33. We agree with the motion judge that recognizing a duty of care toward individual Canadians who may receive a vaccine in the circumstances of a global pandemic would unduly constrain the ability of public health officials to appropriately respond with measures that protect the health of Canadians as a whole.
[54] We therefore conclude that the motion judge did not err in finding that it was plain and obvious that the respondents did not owe a private law duty of care to the appellant’s son and, accordingly, the cause of action in negligence was bound to fail.
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