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Torts - Negligence - Government (3). 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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