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Province Has No Duty to Protect the Public From West Nile
Published in the January 2007 issue of Litigation Notes - View Article
George Eliopoulos was bitten by a mosquito in 2002 and became infected with West Nile Virus. He was treated in hospital and released, but died the following year from complications after a fall. His estate and family sued the Ontario government, alleging that the Ontario government had been negligent in not preventing the West Nile outbreak in 2002. The government brought a motion to strike the claim as disclosing no reasonable cause of action, and this motion was dismissed by both the motions judge and the Divisional Court. The Court of Appeal granted the government’s motion and dismissed the claim.
The central issue was whether Ontario owed Mr. Eliopoulos a private law duty of care, such that they could be liable to Mr. Eliopoulos in negligence. The claimants alleged that Ontario had failed to:
(i) take steps to deal with West Nile Virus as an emergency;
(ii) take adequate measures to reduce the mosquito population in Ontario;
(iii) co-ordinate with other governments and organizations; and
(iv) provide accurate information to the public about the threat of West Nile Virus.
The Court set out the test for finding a private law duty of care:
(i) was the harm that occurred (Mr. Eliopoulos’ death) the reasonably foreseeable consequence of the respondent’s act (the government’s actions regarding West Nile virus)?; and
(ii) are there any policy reasons why liability should not be recognized?
The Court first examined the government’s statutory powers under the Health Protection and Promotion Act. It concluded that these powers did not create a private law duty of care to Mr. Eliopoulos, as the powers were discretionary powers to be exercised in the general public interest.
The Court next examined the government’s West Nile Virus Plan, a document entitled West Nile Virus: Surveillance and Prevention in Ontario, 2001. It found that this plan did not trigger a private duty of care, as it was not a policy decision to be implemented at an operational level and any duties created by the plan resided not with the government but with local authorities or boards of health: The Plan represented an attempt by the Ministry to encourage and coordinate appropriate measures to reduce the risk of West Nile Virus by providing information to local authorities and the public.
The Court found that this fell well short of the sort of policy decision aimed at a particular risk that would trigger a private law duty of care “to implement such policy at the operational level in a non-negligent manner”. It concluded that the government did not owe a private law duty of care to the claimants. It also found that, had the claimants established such a duty of care, policy considerations would negate the imposition of a duty, as to impose this burden would interfere with “sound decision-making in the realm of public health”: In deciding how to protect its citizens from risks of this kind that do not arise from Ontario’s actions and that pose an undifferentiated threat to the entire public, Ontario must weigh and balance the many competing claims for the scarce resources available to promote and protect the health of its citizens.
Eliopoulos v. Ontario, (2007) 82 O.R. (3d) 321 (C.A.)