It is of course an inevitable consequence of keeping Anns v Merton (and hence relegating 90% of the analysis to the second “policy” limb) that nearly all instances of foreseeable harm will give rise to a triable claim. This case is a neat illustration of what was so wrong with Anns – persons generally do not owe a duty to protect elderly people in care (although care providers themselves will assume a tortious and possibly a contractual duty).

 

Absent an assumption of responsibility, which seems not to have been considered here (except perhaps in the form of ‘fiduciary duty’ as I understand is a particularly Canadian approach), if there is a private duty on the Ontario gov to exercise its statutory powers it must come from the statute. Although the court here does engage with the statute, in England that would I think be the beginning and end point of the analysis – its a breach of statutory duty or nothing.

 

 

While only a first-instance decision and only on the question of certification of a class action, some list members may find the analysis in Robertson v Ontario, 2022 ONSC 5127 (https://www.canlii.org/en/on/onsc/doc/2022/2022onsc5127/2022onsc5127.html) to be of interest.

 

As we come out of the pandemic (if indeed that is what is happening as 2022 ends) we can expect to see courts dealing with many claims relating to the handling of its spread.  In Canada one area involves claims in respect of those who were in long-term care homes when the pandemic started in the winter of 2020.  These are claims against the operators of those care homes and also against governments who regulated their operations.

 

In this class action, the claim is against the Ontario government as the regulator of the care homes.  The court finds an arguable claim in negligence and so certifies the class action, allowing it to proceed.  The key legal analysis is in paras 36-64 and deals with the imposing of a private law duty in tort on a statutory regulator.  The court does not express much enthusiasm for the eventual success of the claim but it finds it meets the low hurdle for certification (see para 59).  One can wonder whether the court might have reached a different conclusion if it had instead been prepared to resolve the legal question at this point in the proceedings.

 

Those with more specific interest in finer points of Ontario law (as opposed to tort law more generally) will want to think through the court’s analysis of how the claim gets around recent statutory amendments designed to limit the province’s liability in tort.  See paras 26-30 and discussion of the Crown Liability and Proceedings Act, 2019. 

 

All best wishes of the season to members of this list.

 

Stephen

 

 

Professor Stephen G.A. Pitel
Faculty of Law, Western University
(519) 661-2111 ext 88433
President, Canadian Association for Legal Ethics/Association canadienne pour l’ethique juridique

 

 

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