Thanks Stephen for bringing this case to our attention.

I must admit surprise that despite the low bar for certification that this case survived certification for the negligence claim. As admitted by Belobaba J there was no evidence of any interactions or relationship between the government and the plaintiffs. Thus if a duty can be found in this case it must be found in the statutory provisions. Although it is true that according to the Supreme Court of Canada, a private law duty of care can be implied in statutory provisions even without interactions between the parties, (despite the fact that there is no breach of statute tort in Canada!), I know of no recent judgment, and there are literally dozens of them, where this has happened. The courts are of course obliged to follow the Supreme Court of Canada's dicta that a statute alone can be the source of proximity. The courts raise this possibility in every judgment, before rejecting it. It is interesting to note that although Doherty J.A. in Taylor v Canada (Attorney General) (2012) 352 D.L.R. (4th) 690, allowed a case to be certified on this possibility, when the case eventually went to trial, no duty was found; see 2020 ONSC 192, affirmed 2022 ONCA 892 (CanLII). Even finding sufficient interactions between a public authority and private parties to create a proximate relationship is not that easy, although there are of course cases where duties have been found on that basis. I would be shocked if a duty based on the statutory provisions will be found in Robertson based on the overwhelming jurisprudence which has rejected similar claims.

Lewis Klar

On Wed, Dec 28, 2022 at 6:27 AM Stephen Pitel <spitel@uwo.ca> wrote:

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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Lewis N Klar

Tucson: 520 331 2369

From:	Lewis Klar <lewisnklar@gmail.com>
To:	Stephen Pitel <spitel@uwo.ca>
CC:	obligations <obligations@uwo.ca>
Date:	28/12/2022 22:32:48 UTC
Subject:	Re: Obligations: Public Authorities, Long-Term Care Homes and Duties of Care