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PUBLIC HEALTH LAW: The potential for negligence actions against public health authorities

This article explores the potential for negligence actions against public health authorities, including the parties that can be sued and the limitations on personal liability. It also discusses recent case principles and the distinction between duties owed to the public as a whole and private law duties of care.

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PUBLIC HEALTH LAW: The potential for negligence actions against public health authorities

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  1. PUBLIC HEALTH LAW:The potential for negligence actions against public health authorities Lori Stoltz Adair Morse LLP Board of Health Section General Meeting 23 October 2009 Mark Siboni City of Toronto, Legal Department

  2. Overview • Preliminary points: proper parties, limitation periods, class proceedings • Negligence 101 • Principles emerging from recent cases in the public health context: • Policy-making activities • Operational activities

  3. Who can be sued for what? • Theoretically, anyone for anything • Practically speaking, it’s a shorter list in the public health context

  4. Who • Province • Ontario Agency for Health Protection and Promotion • Boards of Health • Individuals: MOH, PHI, employees, members of boards of health • Federally: Health Canada, PHAC, employees

  5. HPPA, section 95 • Immunity from personal liability for individuals • “Good faith” limits

  6. HPPA, section 95(1) – Protection against personal liability • No action or other proceeding for damages or otherwise shall be instituted against the Chief MOH or the Associate Chief MOH, a member of a board of health, a MOH, an AMOH of a board of health, an acting MOH of a board of health or a public health inspector or an employee of a board of health who is working under the direction of a MOH for any act done in good faith in the execution or the intended execution of any duty or power under this Act or for any alleged neglect or default in the execution in good faith of any such duty or power.

  7. Comparable protections for: • Persons acting under orders, directions or directives: HPPA, section 95(1.2) • Persons making communicable or reportable disease reports: HPPA, section 95(4)

  8. Not relieved from liability: • Board of health: HPPA, section 95(3) • Crown (the Province): HPPA, section 95(1.1) • No similar provisions to preclude judicial review

  9. Other preliminary points • Limitation periods • Class proceedings

  10. Negligence 101 Duty Breach Damage or Injury

  11. The Duty of Care Proximity Overarching Policy Considerations

  12. Principles emerging from recent cases There is a distinction that the Courts have been making between: • Duties owed to the public as a whole. • A private law duty of care. • Policy-making activities of public health as an important distinguishing feature.

  13. Pearson v. Inco Ltd. • A proposed class action alleging negligence on the part of Inco Ltd. in operating a refinery that emitted toxic substances into the environment. • The Regional Municipality of Niagara was a defendant on the basis that it was liable for the negligence of its Medical Officer of Health. • The class action proceeding was not certified as against Niagara and the case against them did not progress beyond certification.

  14. Eliopoulos v. Ontario • The estate of an individual who had contracted West Nile Virus (“WNV”) and died sued the provincial Crown. • It was alleged that the Minister of Health and Long-Term care was negligent in failing to take reasonable steps to prevent the spread of WNV. • The Court of Appeal struck the plaintiff’s claim in its entirety.

  15. Williams v. Canada (A.G.) • A proposed class action was advanced by individuals who had contracted SARS during SARS 2. • The claim was brought against all three levels of government – the federal Crown, the provincial Crown, and the City of Toronto. • The claim, in its entirety, was dismissed as against the federal Crown and the City of Toronto by the Superior Court of Justice. Part of the claim was dismissed as against the Province. • The Court of Appeal has since dismissed the claim against the Province in its entirety.

  16. Principles emerging from recent cases • Operational activities of public health

  17. Morgan v. Metropolitan Toronto (City) • Vaccine recipient alleged negligence for failure to warn of adverse effects • Action dismissed by Superior Court of Justice, 2006 • Result affirmed by Court of Appeal for Ontario, 2008

  18. St. Elizabeth Home Society v.Hamilton (City) • Lodging house alleges negligence (and other claims) in enforcement action • Action dismissed by Superior Court of Justice, 2005

  19. Healy v.Lakeridge Health Corporation • Proposed representative plaintiff exposed to TB • Certification motion adjourned • Motion pending for summary judgment on grounds that there is no duty of care

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