Abarquez v. Ont. (2009), 252 O.A.C. 267 (CA)

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Temp. Cite: [2009] O.A.C. TBEd. MY.044

Emma Abarquez, Terry Abarquez, Jerome Abarquez, Bernard Abarquez, Lester Abarquez, Alison Abarquez, Geraldine Arellaro, Nita Barut, Charlito Barut, Charlene Joy Barut, Janis Bell, Mary Bevins, Bernie Bevins, Melissa Bevins, Terry Bond, Margaret Boynton, James Boynton, Kim Campbell, Ronald Phillip Campbell, Kyle Campbell, Shannon Campbell, by her litigation guardian Kim Campbell, Connor Campbell, by his litigation guardian Kim Campbell, Irene Cancino, Money Choi, Kenny Choi, Eugene Choi, Ada Chung, Iain MacKenzie-Gray, Rosabel Corpuz, Catherine Cosico, Linda Deeks, Tim D'eon, Paisley Marshall D'eon, Emily D'eon, by her litigation guardian Tim D'eon, Hamish D'eon by his litigation guardian Tim D'eon, Adriene Dey, Velma Dyer, Sarah Jane Findlay, Rosalie Francis, Yvette Fray, Sylvia Gordon, Robert Gordon, Kimberly Gordon, Geraldine Hubble, Gordon Hubble, Christopher Hubble, by his litigation guardian Geraldine Hubble, James Hubble, by his litigation guardian Geraldine Hubble, Carolyn Jamieson, Kenneth Jamieson, Margaret Joseph St.-Clair, Onisha Edwards, Yasmin Khan, Azad Khan, Sacha Khan, Krystal Khan, Caila Khan by her litigation guardian Yasmin Khan, Deborah Kinsella, Okryong Kwak, Lucia Lagman, Ruben Ordinario, Ramir Bugarin, by his litigation guardian Lucia Lagman, Raisa Bugarin, by her litigation guardian Lucia Lagman, Evelyn Quiazon, Lau Boon Lam, George Leid, Connie Leroux, Paul Leroux, Megan Leroux, by her litigation guardian Connie Leroux, Matthew Leroux, by his litigation guardian Connie Leroux, Xia Luo, Thelma Maderal, Christine Martin, Juji Menez, Jovito Menez, Jovito Jr. Menez, Christopher Menez, by his litigation guardian Juji Menez, Mark Anthony Menez, by his litigation guardian Juji Menez, Naomi Stevens, Rosmarie Mines, Agnes Mines-Litigio, Shelda Patoir, Monica Patoir, Nancy Petrov, Paul Petrov, Elainne Rivera, Sharon Rivera, Emerson Rivera, Ester Rosete, Lester Rosete, Leonardo Rosete, Jhoan Salvanera, Romelia Salvanera, Silverio Salvanera, Romsel Salvanera, Carmine Salvanera, Viorica Serbanescu, Sorin Serbanescu, Hannah Serbanescu, Iris Serbanescu, by her litigation guardian Viorica Serbanescu, Felipe Somera, Janice Sora, Jason Sora, by his litigation guardian Janice Sora, Kristen Sora, by her litigation guardian Janice Sora, Jonathan Sora, Susan Sorrenti, Ann-Marie St. Louis, Guy St. Louis, Nicole St. Louis, Hali St. Louis, Lesley Takhar, Patricia Tamlin, Nataliya Tarutina, Vitaliy Tarutina, Anna Tarutina, by her litigation guardian Nataliya Tarutina, Ilona Tarutina, by her litigation guardian Nataliya Tarutina, Eila Trovato, Joseph Trovato, Melissa Trovato, Alyse Trovato, Katri Koivunurmi, Lorena Tuarez, Donna Wojciechowicz, Henry Wojciechowicz, Michael Tang in his own capacity and as Executor of the Estate of Tecla Lin, Wilson Tang, Minglong Zhang, Howard Luo by his litigation guardian Xia Luo, Vine Zhang by his litigation guardian Xia Luo (plaintiffs/respondents) v. Her Majesty the Queen in Right of Ontario (defendant/appellant)

(C48011; 2009 ONCA 374)

Indexed As: Abarquez et al. v. Ontario

Ontario Court of Appeal

Sharpe, Juriansz and LaForme, JJ.A.

May 7, 2009.

Summary:

The plaintiffs were nurses who worked in Toronto-area hospitals from March to July, 2003, and their families. The nurses sued Ontario in negligence for damages for injury to their health from SARS. The nurses also alleged a breach of their s. 7 Charter rights. The families asserted Family Law Act claims for loss of care, guidance and companionship. Ontario moved to strike the statement of claim, as amended.

The Ontario Superior Court, in a decision reported [2005] O.T.C. 724, allowed the motion in part. Ontario appealed.

The Ontario Court of Appeal allowed the appeal and struck the entire statement of claim.

Editor's Note: This appeal was heard together with four other similar appeals: Laroza v. Ontario (2009), 251 O.A.C. 119; 2009 ONCA 373; Williams v. Can. (A.G.) (2009), 249 O.A.C. 150; 2009 ONCA 378; Henry Estate v. Scarborough Hospital - Grace Division et al., [2009] O.A.C. Uned. 252; 2009 ONCA 375; and Jamal Estate v. Scarborough Hospital - Grace Division et al., [2009] O.A.C. Uned. 353; 2009 ONCA 376. The judgments in all five appeals were released at the same time.

Civil Rights - Topic 1344

Security of the person - Safety legislation - Occupational health and safety - The plaintiffs included nurses who worked in Toronto-area hospitals from March to July, 2003 - They sued Ontario in negligence for damages for injury to their health from SARS - The nurses argued that as front-line health care workers who had daily and direct contact with patients, they were particularly vulnerable to the risk posed by SARS - They were legally required to care for patients and to subject themselves to that risk - They had no choice but to follow Ontario's detailed and mandatory but, allegedly, inadequate SARS containment Directives - The nurses also alleged a breach of their s. 7 Charter rights in that Ontario exercised its discretion regarding the content of the Directives "in bad faith and for improper motives" particularized as follows: "The Defendant prematurely reduced the requirements for wearing protective equipment in order to minimize SARS for public relations purposes, including concerns regarding tourism and other economic impact of SARS" - The Ontario Court of Appeal rejected the argumentation, struck the statement of claim and dismissed the action - The court held that the plaintiff's claim did not plead facts capable of supporting a finding of arbitrariness - The bad faith/improper motive allegation amounted to no more than a claim that Ontario gave too much weight to one aspect of the public interest and not enough to another - See paragraphs 42 to 51.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - The plaintiffs included nurses who worked in Toronto-area hospitals from March to July, 2003 - They sued Ontario in negligence for damages for injury to their health from SARS - The nurses argued that as front-line health care workers who had daily and direct contact with patients, they were particularly vulnerable to the risk posed by SARS - They were legally required to care for patients and to subject themselves to that risk - They had no choice but to follow Ontario's detailed and mandatory but, allegedly, inadequate SARS containment Directives - The nurses also alleged that Ontario knew or should have known that they would rely on the Directives - They submitted that this claim corresponded to negligent misrepresentation - The Ontario Court of Appeal rejected the argumentation, struck the statement of claim and dismissed the action - The court held that the Directives did not constitute negligent misrepresentations - The Directives made no representations of fact as to what would happen if the Directives were or were not followed - Given the legal character of the Directive, it was "simply" not arguable in law that any reliance the nurses placed upon them could ground an action for negligent misrepresentation - See paragraphs 9 to 16.

Torts - Topic 81

Negligence - Duty of care - Requirement that duty be owed to plaintiff - The plaintiffs included nurses who worked in Toronto-area hospitals from March to July, 2003 - They sued Ontario in negligence for damages for injury to their health from SARS - The nurses argued that as front-line health care workers who had daily and direct contact with patients, they were particularly vulnerable to the risk posed by SARS - They were legally required to care for patients and to subject themselves to that risk - They had no choice but to follow Ontario's detailed and mandatory but, allegedly, inadequate SARS containment Directives - They argued that Ontario's direct intervention into their workplace gave rise to a relationship of proximity sufficient to ground a duty of care and a claim in negligence - The Ontario Court of Appeal rejected the argumentation, struck the statement of claim and dismissed the action - The court held that although Ontario was obliged to protect the public at large from the spread of communicable diseases, Ontario did not owe the nurses a private law duty of care giving rise to claims for damages as a result of the issuance of the Directives or as a supervisor under the Occupational Health and Safety Act (OHSA), nor did it owe the plaintiffs a private law duty to enforce the OHSA through the Ministry of Labour - See paragraphs 1 to 41, 52.

Torts - Topic 9157.2

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Public health authorities - [See Torts - Topic 81 ].

Trade Regulation - Topic 7744

Industrial safety - Duty of care - When duty arises - [See Torts - Topic 81 ].

Words and Phrases

Supervisor - The Ontario Court of Appeal discussed the meaning of the word "supervisor" found in s. 1(1) of the Occupational Health and Safety Act, R.S.O. 1990, c. O-1 - See paragraphs 30 to 35.

Cases Noticed:

Williams v. Canada (Attorney General) et al., [2005] O.T.C. 729; 76 O.R.(3d) 763 (Sup. Ct.), refd to. [para. 3].

Eliopoulos et al. v. Ontario (Minister of Health and Long-Term Care) (2006), 217 O.A.C. 69; 82 O.R.(3d) 321 (C.A.), reving. (2005), 198 O.A.C. 377; 76 O.R.(3d) 36 (Div. Ct.), refd to. [para. 4].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79 (S.C.C.), refd to. [para. 10].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 All E.R. 492 (H.L.), refd to. [para. 10].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 11].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, consd. [para. 27].

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, consd. [para. 27].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

Ontario (Minister of Labour) v. Walters, [2004] O.T.C. 1238 (Sup. Ct.), refd to. [para. 34].

R. v. Adomako, [2002] O.J. No. 3050 (Ct. J.), consd. [para. 34].

R. v. Furtado, [2007] O.J. No. 3122 (Ct. J.), refd to. [para. 34].

Ingles v. Tutkaluk Construction Ltd. et al., [2000] 1 S.C.R. 298; 251 N.R. 63; 130 O.A.C. 201; 2000 SCC 12, refd to. [para. 37].

Swanson and Peever v. Canada, [1992] 1 F.C. 408; 124 N.R. 218 (F.C.A.), refd to. [para. 37].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 37].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 43].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, consd. [para. 45].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, consd. [para. 48].

Trang et al. v. Edmonton Remand Centre (Director) et al. (2007), 412 A.R. 215; 404 W.A.C. 215; 2007 ABCA 263, refd to. [para. 48].

Statutes Noticed:

Occupational Health and Safety Act, R.S.O. 1990, c. O-1, sect. 1(1) [para. 31].

Counsel:

Elizabeth McIntyre and Katie Gibson, for the respondents;

Lise G. Favreau, Kim Twohig and Leslie McIntosh, for the appellant.

This appeal was heard on February 25, 2009, by Sharpe, Juriansz and LaForme, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Sharpe, J.A., and released on May 7, 2009.



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