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Torts - Negligence - Duty of Care (4)

. Robertson v. Ontario

In Robertson v. Ontario (Ont CA, 2023) the Court of Appeal considered negligence duty of care, 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.
. Desrochers v. McGinnis

In Desrochers v. McGinnis (Ont CA, 2023) the Court of Appeal considered an appeal against a trial finding that the defendant owed a 'duty of care', here in a case involving a serious ATV accident:
A. Duty of care

The trial judge’s reasons

[10] The trial judge correctly identified the method he was required to follow to determine whether Patrick owed Megan a duty of care in the circumstances:
. First, ascertain if the case law already has established that the duty of care in question, or an analogous duty, exists;

. If the case law has not, then apply the two-stage analysis known as the Anns/Cooper test[1] under which one first asks whether there is a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff and, if there is, then it is open to the defendant to establish that there are residual policy reasons why this duty should not be recognized: Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, 422 D.L.R. (4th) 317, at paras. 18-20.
[11] As I read his reasons, the trial judge appeared to conclude that the principles articulated in the following four cases, taken together, established an analogous duty of care in the circumstances of this case:
. The promoter and organizer of an inherently dangerous sport must take all reasonable steps to prevent a visibly incapacitated person from participating: Crocker v. Sundance Northwest Resorts Ltd., 1988 CanLII 45 (SCC), [1988] 1 S.C.R. 1186, at paras. 21-24;

. A person who has the care and control of a motor vehicle should not permit another person that he or she knows or should know is unfit to drive to take over the control of the vehicle, particularly where the vehicle is high powered, the driving conditions are difficult, and the proposed driver is clearly impaired: Hall v. Hebert, 1993 CanLII 141 (SCC), [1993] 2 S.C.R. 159, at p. 223, per Cory J. (concurring);

. An all-terrain vehicle is a dangerous machine, and its owners owe a duty of care to those who may use the machine, particularly minors, to receive instruction in its use, to provide safety helmets, and to lay down reasonable and safe rules for the machine’s use: Gibson v. Haggith (1994), 1994 CanLII 9105 (AB KB), 156 A.R. 229 (Q.B.), at para. 16; and

. Finally, in J.G. (Dependent Adult) v. Strathcona (County of), 2004 ABQB 378, 356 A.R. 140 – a case that involved a teenaged minor visiting a friend’s house to use a snowmobile – a duty of care was found to exist that required the friend’s parents who owned the snowmobile to take reasonable steps to satisfy themselves that the minor was capable of operating a snowmobile safely and that he or she would do so: at para. 143.
[12] After citing the portion of this court’s decision in Garratt v. Orillia Power Distribution Corp., 2008 ONCA 422, 90 O.R. (3d) 161 that summarized the standard principles regarding the existence of a duty of care, the trial judge stated, at para. 87:
I find that the plaintiffs established a prima facie duty of care for all defendants. An ATV is a popular motorized vehicle and, to date, there is no legally mandated instruction or training nor license qualification. The owner of an ATV or a person who can control access to it owes a duty of care to a person, like Megan, who they know has had little or no experience or instruction in operating one. It is a powerful machine which can result in serious injuries to a driver or passenger, whether child or adult, if it is not operated properly. A reasonable person would know this; the probability of harm in these circumstances is clearly foreseeable. There is a similar legal obligation if they have particular knowledge that the person cannot safely operate the ATV due to their physical or mental condition. There are no policy considerations which would negative or limit the duty. [Emphasis added.]

[14] First, Patrick submits that the trial judge decided that no analogous duty of care cases existed and then proceeded to err in his application of the Anns/Cooper test. That is not the way I read the trial judge’s reasons. As I have stated, to my eye the trial judge accepted that the principles enunciated in the four cases I summarized in para. 11 above combined to apply by analogy to the present case. I see no error in the trial judge so concluding.


[16] As I read the trial judge’s reasons, he simply applied the commonsense principle articulated by Cory J. in Hall, at p. 223, that “one who has the care and control of a vehicle should not permit another person that he or she knows or should know is unfit to drive to take over the control of his or her vehicle.” While Cory J. made those remarks in a case involving an automobile, they apply equally to the circumstances involving the ATV.


[19] Finally, Patrick contends the trial judge erred in his reasonable foreseeability analysis as “[t]here was no evidence on which the trial judge could conclude that Patrick, Catherine or Grant knew or ought to have known that Megan, on the evening of collision, would injure herself in the operation of the ATV.” I see no such error by the trial judge.

[20] In Rankin, at para. 24, the Supreme Court framed the proper question to ask when determining whether reasonable foreseeability is established as: “whether the plaintiff has ‘offer[ed] 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’”. In the causation section of his reasons, the trial judge made additional comments on the issue of reasonable foreseeability, writing at para. 100:
In addition to the lack of instruction or training in what is, based on the evidence, the most important skill a rider must have to safely operate an ATV [i.e., knowing how to navigate turns], Patrick also knew that Megan had never ridden the ATV on Young Road (or, for that matter, any road), either with him or alone. The one exception appears to have been on July 29, 2014 and it is notable that when Patrick drove the ATV on Young Road that evening, he started in the field and it was not until a point well south of the curve that he drove onto Young Road. He knew that Megan was headed to a dangerous spot on the road. The peril was twofold: a sharp curve that required a level of skill to negotiate which Megan did not possess and an obstacle (the tree) a few metres off the roadway that would cause serious injuries if the ATV collided with it. It is probable that Megan did not realize that she was at a sharp curve until moments before she was at the start of the bend in the roadway. By then, it was too late for a person with her skill level and experience to make the turn or stop the vehicle before it went off the roadway and struck the tree. All of this was foreseeable to Patrick, as was the result.
. Kudrocova v. Waterloo Region District School Board

In Kudrocova v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered the duty of care element in negligence in a successful appeal of a denial of a R21 motion to strike pleadings - here in an action by a parent against a school board:
[22] With respect to the alleged wrongfulness of the other actions, or inactions, the Respondent simply asserts that the Appellants – all of them – were aware of the joint custody order. But whether the joint custody order obligated the Appellants to act differently is not pleaded, nor is any breach of a legal duty, including a breach of a duty of care towards the Respondent. Rather, the Respondent has been careful to limit her claim to intentional torts. This is likely due to the jurisprudence holding that there is insufficient proximity between a parent of a pupil and teachers or school boards on which to ground a duty of care: Reyes v. Toronto District School Board, 2014 ONSC 2490, at paras. 12-16; Elkow v. Sana, 2006 ABQB 851, 410 A.R. 199, at paras. 13-22.

[23] The reason for not recognizing such a duty is illustrated by the facts of this case, in which teachers and principals have as their primary responsibility the safety and wellbeing of the pupils in their charge. They should not be put in a position of conflict, as they were here, of doing what they think best for the child and be put at risk of liability because the parent might disagree or even be hurt as a result. As quoted above from Odhavji, teachers, as public officers, “must retain the authority to make decisions that, where appropriate, are adverse to the interests of”, in this case, parents. This is consistent with the cautious approach the law has taken in imposing duties of care on public officials due, in part, to the specific concern that casting a duty of care too widely fails to respect the conflicting priorities faced by public officials: see Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537.
. Bigeagle v. Canada

In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considers the negligence duty of care, here where negligent investigation is pled against the RCMP:
[51] In order to determine whether the statement of claim as pled gave rise to a cause of action of systemic negligence or negligent police investigation against the RCMP, the motion judge had to ascertain whether the RCMP has a duty of care to the Class. This involved examining whether such duty had already been recognized in law, and if not, whether a new duty of care should be recognized by applying what is known as the Anns/Cooper test to the facts pled (Anns v. Merton London Borough Council, [1978] A.C. 728 at 751-52 (H.L.); Cooper v. Hobart, 2001 SCC 79 at paras. 30-31).

[52] This two-part test provides a framework to determine when a duty of care arises. In Nelson (City) v. Marchi, 2021 SCC 41, the Supreme Court of Canada described the framework in novel duty of care cases as follows:
[17] 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” (Rankin’s Garage, at para. 18). 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” (Cooper, at paras. 32 and 34).

[18] 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 (Cooper, at para. 30). As stated in Cooper, at para. 37, the residual policy stage of the Anns/Cooper test raises questions relating to “the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally”, such as:
Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized?
[19] When the duty of care at issue is not novel, there is generally no need to proceed through the full two-stage Anns/Cooper framework. Over the years, courts in Canada have developed a body of negligence law recognizing categories of cases in which a duty of care has previously been established […] In such cases, “the requisite close and direct relationship is shown” and the first stage of the Anns/Cooper framework will be complete, as long as the risk of injury was reasonably foreseeable […] The second stage of the Anns/Cooper test will rarely be necessary because residual policy concerns will have already been taken into account when the duty was first established […]

[61] The motion judge found that the jurisprudence did not support a private law duty of care to the Class. While she recognized that the police have been found to owe a private duty of care in certain cases, she was of the opinion that the material facts pled in this case did not have foreseeability and proximity analogous to that found in those very limited factual situations.

[62] Finding there was no established duty of care, the motion judge went on to consider the existence of a novel duty of care by applying the Anns/Cooper test to the facts pled.

[63] It is in the context of her analysis of foreseeability and proximity that the motion judge considered that many of the negligent actions or breaches pled were solely in the jurisdiction of other police services, and therefore lacked the elements of foreseeability and proximity. This observation was appropriate given that several of the claims asserted in the statement of claim related to victims whose disappearance or murder was reported, not to the RCMP, but to other municipal or provincial police forces.

[64] She further noted that the members of the Class included the victims’ families and community members and found that, even if the RCMP had jurisdiction over the investigations, the foreseeability and proximity requirements were not met as the connection between the RCMP and the victims’ families and community members was too far removed. She was also of the view that proximity could not be established by general public statements made by RCMP officials.

[65] Likewise, she observed that neither the RCMP’s constituent act, nor the existing policies or lack thereof, established the relationship or foreseeability necessary to ground a private law duty of care. Any duty owed was to the public in general and not to specific individuals or groups.

[66] She concluded that since the pleadings did not disclose a duty of care, that is to say the first element of the cause of action for systemic negligence, it was plain and obvious that the systemic negligence cause of action was doomed to fail.

[67] Regarding the cause of action of negligent police investigation, the motion judge considered Ms. BigEagle’s argument that where a duty of care is owed by the police to the suspects, this duty could be extended to include the victims, and by relationship the Class. She noted that the test for this tort was the same as any negligence analysis and that the courts have clearly and unequivocally stated that the duty of care in a negligent police investigation was to the person being investigated. She found it was too far a leap to extend it to a victim, or their family or community members, and concluded that it was obvious this cause of action would fail.

[68] That some of the breaches alleged may be attributable to the RCMP does not negate the requirement that a duty of care must exist to support the causes of action in systemic negligence or negligent police investigations. The motion judge applied the correct test and her findings that the police duties in investigating crimes and murders are public in nature and generally do not give rise to a private law duty of care to the victims’ families and community members are well supported by the case law (Goldman v. Weinberg, 2019 ONCA 224 at para. 6; Connelly v. Toronto (Police Services Board), 2018 ONCA 368 at paras. 3, 7; RVB v. Levin, 2018 ABQB 887 at para. 36; Jones v. The Attorney General of Canada (Royal Canadian Mounted Police) et al., 2018 NBCA 86 at para. 30; Good at paras. 80, 85; Wellington v. Ontario, 2011 ONCA 274 at paras. 20, 31, 43-44; Spencer v. Canada (Attorney General), 2010 NSSC 446 at paras. 56, 58; Odhavji Estate v. Woodhouse, 2003 SCC 69 at para. 40 (in obiter)).

[69] The RCMP’s governing legislative scheme also demonstrates that the RCMP’s duty is owed to the public in general. It does not provide for a private duty of care to any particular member of the public (RCMP Act, ss. 18, 37; Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281, Schedule).

[70] The courts have found that the police owe a private duty of care to individuals in certain circumstances. For example, they have a duty to a particular suspect under investigation of alleged criminality (Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41), and a duty to warn a narrow and distinct group of potential victims of crime (Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, [1998] O.J. No. 2681 (Ont. Gen. Div.) (QL), 1998 CanLII 14826). In this case, the claims asserted by Ms. Bigeagle on behalf of the Class do not fall within these exceptional categories of cases.


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Last modified: 07-02-24
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