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Long-Term Care Homes - COVID. Robertson v. Ontario
In Robertson v. Ontario (Ont CA, 2023) the Court of Appeal considered aspects of negligence, here in a class action addressing multiple COVID deaths in long-term care homes. Here the court examines (and approves) the motion judge's certification of negligence claims against the Ministry of Long-term Care (MLTC):(3) The Motion Judge Did Not Err in Certifying the Negligence Claim Against the MLTC on the basis that It Was Not “Certain to Fail”
(a) The Respondent’s Cross-Appeal
[49] In its cross-appeal, the respondent submits that the motion judge erred in certifying the appellants’ alleged negligence claim against Ontario in relation to the MLTC. Specifically, the respondent argues that the motion judge erred in his duty of care analysis in three major respects:(i) the wording of the preamble has “no enacting force”,[2] and “is not a source of positive law and cannot independently protect a right”;[3]
(ii) s. 174.1 of the LTCHA provides that the MLTC may issue directives only where the minister “considers it in the public interest to do so”, which precludes the existence of a private law duty of care in favour of residents of LTC homes; and
(iii) the negligence claim is barred by policy immunity, as well as by s. 181 of the LTCHA, which confers an immunity for good faith acts and omissions. [50] For the reasons set out below, I would not give effect to any of these objections.
(b) The preamble to the LTCHA can be used to interpret the MLTC’s powers under the Act
[51] The motion judge did not err by using the LTCHA’s preamble to interpret the MLTC’s powers.
[52] While it is true that the Supreme Court in the Patriation Reference stated that a preamble has “no enacting force”, the Court went on (in the same sentence) to add that “[a preamble] can be called in aid to illuminate provisions of the statute in which it appears.” Courts have in more than one occasion utilized a preamble in this manner: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly, 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, at pp. 374-75, (preamble to the Constitution Act, 1867 entitles the Nova Scotia House of Assembly to exclude strangers from the Assembly); Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at pp. 68-75 (preamble to the Constitution Act, 1867 entails recognition of the principle of judicial independence as a fundamental constitutional principle). Moreover, s. 69 of the Legislation Act, 2006, S. O. 2006, c. 21, Sched. F., provides that a preamble may be used to determine an Act’s purpose.
[53] Based on the above noted jurisprudence, I see nothing particularly novel in the motion judge’s finding that the preamble to the LTCHA can be utilized in the interpretation of the MLTC’s statutory powers and, in particular, in determining whether the MLTC is subject to a duty of care in favour of residents of LTC homes when exercising those powers.
[54] In my view, the motion judge correctly recited and applied the appropriate statutory interpretation principles regarding the MLTC’s powers pursuant to the LTCHA. Given the wording of the preamble and s. 1 of the LTCHA, the motion judge properly found that it is at least arguable that the statute, either expressly or by necessary implication, gives rise to a duty of care on the part of the MLTC.
(c) It is not plain and obvious that the “public interest” wording in s. 174.1 of the LTCHA precludes a finding of a duty of care on the part of the MLTC
[55] The fact that the MLTC’s power to issue directives under s. 174.1 must be in “the public interest” is certainly a significant hurdle that the appellants will have to overcome if they are to ultimately succeed in establishing a private law duty of care on the part of the MLTC. But, at this stage, the relevant question is whether the appellants are “certain to fail” in making such an argument.
[56] As the motion judge observed, s. 174.1(2)(c) defines “public interest” as including “the quality of care and treatment of residents within long-term care homes generally”. This is reinforced by the “fundamental principle” set out in s. 1 of the LTCHA, which states that anything required or permitted to be done under the Act should be interpreted so that residents of long-term care homes may live with “dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met.”
[57] Moreover, it is at least arguable that the statutory mandate of the MLTC is distinguishable from that of the MOH and the CMOH. In Eliopoulos and Williams, this court emphasized that the statutory mandate of the MOH and the CMOH is to act in the general public interest and is not aimed at or geared to the protection of the interests of specific individuals: Eliopoulos at para. 17; Williams at para. 25. In contrast, the preamble to the LTCHA and, indeed, the entire statute, is arguably aimed at the protection of an identifiable class of persons, namely, the residents of LTC homes.
[58] To be sure, the appellants’ attempt to distinguish the mandate of the MLTC in this manner, and thereby establish a duty of care in favour of the residents of LTC homes, may well not prevail at an adjudication on the merits. But in my view, it would be inappropriate at this stage to definitively conclude that the appellants’ argument is certain to fail. This is particularly the case given that the government only recently created the office of MLTC through the 2019 Orders in Council. Accordingly, there is yet to be any authoritative judicial pronouncement on whether this recent bifurcation of ministerial responsibilities, and the appointment of a minister whose exclusive focus is LTC homes and their residents, alters in any way the duty of care analysis applicable to the MOH and the CMOH.
[59] I am therefore of the view that the motion judge correctly found that the appellants’ claim that the MLTC owes a duty of care to LTC home residents when exercising statutory powers is not certain to fail, notwithstanding the MLTC’s responsibility to act in the general public interest when issuing directives under s. 174.1 of the LTCHA.
(d) The negligence claim against the MLTC is not barred by Crown immunity for policy decisions, nor by the statutory immunity in s. 181 of the LTCHA for decisions taken in good faith
[60] The respondent acknowledges that the Crown’s immunity for policy decisions, as well as the statutory immunity in s. 181 of the LTCHA, only extends to acts or omissions done in good faith. But, says the respondent, the appellants have not properly pleaded bad faith, instead merely alleging conduct that was “grossly negligent”, “reckless” or “arbitrary”. Hence, even if true, the actions alleged fall short of “bad faith” conduct, which requires that a public official act in a manner that he or she knows to be inconsistent with the obligations of the office.[4]
[61] At the same time, while reckless conduct, in itself, falls short of “bad faith”, reckless conduct can provide circumstantial evidence from which the absence of good faith can be deduced and bad faith inferred: Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 53.
[62] This is essentially what the appellants plead here. The statement of claim alleges that as a result of various reports documenting the failed government response to the SARS epidemic, the government had knowledge of the deplorable conditions facing residents of LTC homes, and of the fact that the homes were ripe for disease outbreaks. The appellants says that despite having nearly two decades to prepare, the government inexplicably and recklessly failed to ensure that an appropriate pandemic plan was in place to respond to a deadly and foreseeable pandemic like COVID-19.
[63] The appellants further plead that, when COVID-19 emerged in late January 2020, it was starkly evident that the vulnerable residents of LTC homes would be at the greatest risk from the virus. Yet the government blatantly ignored and downplayed the risk, in complete disregard of their duties to take action to protect the residents of LTC homes. Ontario’s conduct, according to the appellants, was “high-handed and callous, demonstrating a wanton and reckless disregard for the safety of residents of LTC homes”. It resulted in thousands of deaths and serious illnesses, most of which could have been prevented. Such conduct, say the appellants, cannot be explained as anything other than bad faith.
[64] The motion judge found that the appellants have sufficiently pleaded the absence of good faith, such that the claim should not be struck at the pleading stage on account of the Crown’s immunity for policy decisions or on the basis of the statutory immunity in s. 181 of the LTCHA. I agree. Regardless of whether the appellants are able to establish the absence of good faith at an adjudication on the merits, their pleadings are sufficient to justify allowing the claim to proceed.
[65] In conclusion on this issue, the motion judge correctly applied the relevant legal principles in his analysis of this cause of action. Specifically, I see no reversible error in his finding that the negligence claim against the MLTC is at least arguable, and therefore should not be struck on the basis of the “cause of action” requirement in s. 5(1)(a) of the CPA. I would therefore dismiss the respondents cross-appeal of this aspect of the motion judge’s order. . Robertson v. Ontario
In Robertson v. Ontario (Ont CA, 2023) the Court of Appeal considered aspects of negligence, here in a class action addressing multiple COVID deaths in long-term care homes. Here the court examines (and approves) the motion judges denial of negligence claims against various government agencies:(2) The Motion Judge Did Not Err in Striking the Negligence Claim Against the MOH and the CMOH
(a) Governing Principles
[31] It is well established that a public authority is liable in negligence only where the authority owes a “duty of care” to the person harmed: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at paras. 22-23. If the negligence claim against the public authority does not fall within a pre-existing category of cases in which a duty of care has previously been recognized, the plaintiff must satisfy the following three requirements: (i) the harm suffered by the plaintiff must have been reasonably foreseeable; (ii) there must have been sufficient “proximity” between the plaintiff and the public authority such that it would be “fair and just” to impose a duty of care on the public authority ; and (iii) there must be no residual policy reasons for declining to impose such a duty: Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579, 162 O.R. (3d) 532, at para. 22.
[32] A relationship of “proximity” can be established either through “specific interactions” between the government and the claimant, or where the relevant legislation gives rise to a duty of care expressly or by necessary implication: Imperial Tobacco Ltd. at paras. 43-46. However, where the statutory scheme grants discretionary power to a public authority to act in the “public interest”, this will generally preclude the existence of a private law duty of care in relation to a particular group of affected individuals. This is because such powers are to be exercised in the general public interest and are not aimed at the protection of the private interests of specific individuals: Eliopoulos (Litigation Trustees of) v. Ontario (Minister of Health and Long-term Care) (2006), 2006 CanLII 37121 (ON CA), 82 O. R. (3d) 321 (C.A.), at para. 17 (discretionary powers conferred on the MOH under the HPPA are not capable of creating a private law duty of care.); Williams v. Ontario, 2009 ONCA 378, 95 O.R. (3d) 401, at para. 25 (directives issued by the CMOH to combat SARS were aimed at the interests of the public at large and therefore could not give rise to a private law duty of care.)
(b) No Duty of Care Arising from “Specific Interactions”
[33] The appellants argue that the motion judge erred in finding that the Claim failed to adequately plead any “specific interactions” between the Crown Officers and the residents of the LTC homes that could give rise to a duty of care. The appellants rely, in particular, on Directive #3 for Long-Term Care Homes under the Long-Term Care Homes Act, 2007, first issued on March 22, 2020 by the CMOH pursuant to s. 77.7 of the HPPA (“Directive #3”). This Directive sets out a number of precautions and procedures that LTC homes were required to implement immediately to limit the spread of COVID-19, including tightened procedures to be followed in the admission of new residents to LTC homes.
[34] The appellants argue that the motion judge adopted a “narrow and rigid approach” by insisting that a stand-alone claim in tort must be pled against each government officer and employee implicated in Ontario’s response to COVID-19 in LTC homes. According to the appellants, the motion judge’s analysis represents a “radical and improper departure from appellate jurisprudence” and would unjustifiably expand the scope of Crown immunity. They submit that the statement of claim properly pleads a tenable cause of action in negligence against Ontario for the “collective tortious acts and omissions” of the three identified Crown Officers and employees who led and implemented Ontario’s response to COVID-19 in LTC homes.
[35] I am not persuaded by the appellants’ submissions.
[36] The difficulty with the appellants’ negligence claim was not that it failed to identify specific government officers and employees whose acts or omissions might have engaged the vicarious liability of Ontario. Rather, as the motion judge pointed out, the shortcoming in the appellants’ pleading was that it failed to identify any “specific interactions” between the Crown Officers (or, indeed, any other Crown employees), which could give rise to a duty of care in favour of the residents of the LTC homes.
[37] For example, Directive #3, upon which the appellants particularly rely, was directed to the independent operators of the LTC homes, rather than the LTC residents themselves. Moreover, Directive #3 was one of dozens of directives issued by the CMOH during the course of the COVID-19 pandemic, pursuant to the CMOH’s general authority under the HPPA, to take action in the public interest where there is “an immediate risk to the health of persons anywhere in Ontario”. Those directives mandated necessary precautions and procedures to limit the spread of COVD-19 amongst the entire Ontario population.
[38] Far from representing a “radical and improper departure from appellate jurisprudence”, the motion judge correctly applied the governing jurisprudence, particularly Eliopoulos and Williams. As noted above, these cases clearly establish that directives issued by the CMOH to combat a threat to public health in Ontario are issued pursuant to the CMOH’s duty to act in the general public interest and for that reason cannot give rise to a private law duty of care.
[39] In fact, the circumstances in the present case are directly analogous to those in Eliopoulos, where a government plan to respond to West Nile Virus was directed to local boards of health and therefore could not give rise to a duty of care in favour of persons infected with the virus: Eliopoulos, at para. 17. Likewise, in this case, Directive #3 was directed to the operators of LTC homes and therefore could not amount to a “specific interaction” with the residents of the homes.
[40] Conversely, the circumstances here are clearly distinguishable from cases relied upon by the appellants, including Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, [2015] 1 S.C.R. 132 or Taylor, where there were specific actions or representations that were directed at an identifiable class of persons, thereby providing a basis for a private law duty of care in favour of that class of persons.[1]
[41] Therefore, I am of the view that the motion judge did not err in finding that the Claim failed to plead any “specific interactions” between the Crown Officers and the residents of the LTC homes that could give rise to a private law duty of care.
(c) Neither the CMOH Nor the MOH Owe a Duty of Care to LTC Residents Arising from Statute
[42] As noted above, binding authority from this court clearly establishes that the exercise of statutory powers by the MOH and the CMOH under the HPPA cannot give rise to a private law duty of care because these powers are to be exercised in the general public interest. The motion judge relied upon this binding authority and found that there was no statutory basis to found a negligence claim against the CMOH and the MOH.
[43] The appellants nevertheless maintained that the motion judge erred in striking the negligence claim against the MOH and the CMOH on two grounds:(i) he failed to take account of the fact that the preamble to the LTCHA recognizes a responsibility on the part of “the government” to take action to protect residents of LTC homes, which arguably imposes a duty on the MOH and the CMOH, in addition to the MLTC, to take action to protect the residents of the LTC homes; and
(ii) although the former Ministry of Health and Long-Term Care was in the process of being divided into two separate ministries commencing in 2019, this process was still ongoing with the onset of the COVID-19 pandemic in March 2020. Therefore, the appellants say, the motion judge erred in failing to find that the MOH continued to be responsible for the administration of the LTCHA through at least the early stages of the COVID-19 pandemic. [44] I would not give effect to either of these objections.
[45] While it is true that the preamble to the LTCHA provides that “the government” recognizes the responsibility to take action on behalf of the residents of LTC homes, the LTCHA itself makes no mention whatsoever of either the CMOH or the MOH. Moreover, Orders in Council 1110/2019 and 1111/2019, approved on August 8, 2019 (collectively, the “2019 Orders in Council”), provide that the MLTC (and not the MOH) is to perform the duties, functions and responsibilities in respect of LTC that had previously been assigned to the former Minister of Health and Long-Term Care.
[46] The appellants say that the 2019 Orders in Council are ambiguous in this regard, since the appendices to both Orders (which list the statutes to be administered by each minister) include the LTCHA. According to the appellants, this suggests that both the MLTC and the MOH were granted continuing authority to administer the LTCHA, despite the August 8, 2019 appointment of a new minister being specifically assigned that responsibility.
[47] In my view, the appellants’ interpretation of the 2019 Orders in Council cannot be correct. Both Orders expressly assign responsibility to administer the LTCHA to the MLTC, while simultaneously excluding such responsibility on the part of the MOH. It may well be, as the respondent argues, that the inclusion of the LTCHA in the appendix to the Order assigning responsibility to the MOH was due to an oversight. Regardless, whatever significance is to be attached to the inclusion of the LTCHA in the appendix to the Order assigning ministerial responsibility to the MOH, it cannot have the effect of rendering nugatory the express terms or the intended purpose of both 2019 Orders in Council, which assigned responsibility for the administration of the LTCHA to the MLTC and not the MOH: Rizzo & Rizzo Shoes Ltd., (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. The fact that the MOH no longer had ministerial responsibility in respect of the LTCHA after August 8, 2019 is confirmed by the fact that after that date all such powers were in fact exercised by the MLTC and not the MOH.
[48] I would therefore find that the motion judge did not err in finding that there can be no private law duty of care claim against either the CMOH or the MOH on the basis of the statutory language of the LTCHA. Because he had already found that no such private law duty of care could arise on the basis of “specific interactions” between these officers and the residents of the LTC homes, the motion judge correctly struck the negligence claim against the CMOH and the MOH.
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