Attis et al. v. Canada (Minister of Health) et al.,

• Jurisdiction: Ontario
• Judge: Lang, Juriansz and MacFarland, JJ.A.
• Neutral Citation: 2008 ONCA 660
• Citation: (2008), 254 O.A.C. 91 (CA),2008 ONCA 660,93 OR (3d) 35,300 DLR (4th) 415,[2008] OJ No 3766 (QL),169 ACWS (3d) 684,254 OAC 91,59 CPC (6th) 195,93 O.R. (3d) 35,[2008] O.J. No 3766 (QL),254 O.A.C. 91,300 D.L.R. (4th) 415,(2008), 254 OAC 91 (CA)
• Date: 27 May 2008
• Court: Court of Appeal (Ontario)

Attis v. Can. (2008), 254 O.A.C. 91 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. AU.037

S. Joyce Attis and A. Tesluk (plaintiffs/appellants) v. Her Majesty the Queen in Right of Canada as represented by the Minister of Health, the Attorney General for Canada, Regulatory Institution 1, Regulatory Institution 2, John Doe and Jane Doe (defendants/respondents) and Dow Corning Corporation (third party)

(C47185; 2008 ONCA 660)

Indexed As: Attis et al. v. Canada (Minister of Health) et al.

Ontario Court of Appeal

Lang, Juriansz and MacFarland, JJ.A.

September 30, 2008.

Summary:

The plaintiffs alleged that the government defendants (Health Canada) failed or refused to properly regulate the use of breast implants manufactured, distributed, imported and sold in Canada by Dow Corning Corporation and subsidiaries. The plaintiffs moved for an order certifying the action against Health Canada as a class proceeding under the Class Proceedings Act, 1992 (Ont.) (CPA) and appointing them as the representative plaintiffs in relation to a national class, except for British Columbia, said to include some 29,500 persons.

The Ontario Superior Court, in a decision reported at [2007] O.T.C. Uned. 770, dismissed the motion for certification on the basis that the plaintiffs' pleadings failed to disclose a cause of action as required by s. 5(1)(a) of the CPA. The parties made submissions respecting costs. Health Canada sought costs on a partial indemnity basis, in the amount of $675,011.25 plus disbursements in the amount of $399,436.99 for a total of $1,074,448.24. The plaintiffs argued that no costs should be awarded.

The Ontario Superior Court, in a decision reported at [2007] O.T.C. Uned. D88, ordered the plaintiffs to pay costs fixed at $125,000. The plaintiffs appealed the dismissal and the costs order.

The Ontario Court of Appeal dismissed the appeal.

Actions - Topic 1523

Cause of action - Creation of - By statute - Imposition of duty - [See second Crown - Topic 1563 ].

Crown - Topic 1563

Torts by and against Crown - Negligence by Crown - Breach of statutory duty - The plaintiffs in a proposed class action alleged that the government defendants (Health Canada) failed or refused to properly regulate the use of certain breast implants under the Food and Drugs Act and regulations - They alleged that Health Canada failed to take action in the face of a known risk and, in doing so, acted contrary to its duty to protect consumers - They argued that this type of regulatory negligence was a recognized category of tort liability - The Ontario Court of Appeal rejected the plaintiffs' claim that the courts had previously recognized a duty of care arising from relationships of proximity analogous to their relationship with Health Canada - This case did not fall within a recognized or analogous category of proximate relationship - No direct interaction occurred between the plaintiffs and Health Canada - To the extent that the claim alleged breach of a statutory duty, such a claim had already been recognized as attracting immunity - See paragraphs 38 to 51.

Crown - Topic 1563

Torts by and against Crown - Negligence by Crown - Breach of statutory duty - The plaintiffs in a proposed class action alleged that the government defendants (Health Canada) failed or refused to properly regulate the use of certain breast implants under the Food and Drugs Act and regulations - They alleged that Health Canada failed to take action in the face of a known risk and, in doing so, acted contrary to its duty to protect consumers - The Ontario Court of Appeal undertook an Anns inquiry to determine whether a novel duty of care should be recognized in this case - The court opined that it was reasonably foreseeable that unsafe breast implants could cause harm to consumers - However, the statutory scheme did not support a relationship of proximity - Since an examination of the legislative scheme revealed that no duty was placed on Health Canada, and all obligations were on the industry, the court concluded that the statute signalled an intention that Health Canada's duty was owed to the public as a whole, not to the individual consumer - No intention to impose a private law duty could be inferred - There was no interaction with Health Canada that could have led the plaintiffs to believe Health Canada had assumed a private law duty of care for product safety - Alternatively, if the court was wrong about the absence of a proximate relationship, it opined that the imposition of a duty of care was negatived under the second stage of the Anns test by residual policy considerations reflecting the broad societal and legal implications of imposing a duty of care (indeterminate liability and potential chilling effect on public health) - See paragraphs 52 to 78.

Crown - Topic 1571.1

Torts by and against Crown - Negligence by Crown - Failure to enforce legislation (incl. regulations) - [See both Crown - Topic 1563 ].

Crown - Topic 2804

Crown immunity - General - Immunity under federal legislation - [See first Crown - Topic 1563 ].

Practice - Topic 210.3

Persons who can sue or be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The plaintiffs in a proposed class action alleged that the government defendants (Health Canada) failed or refused to properly regulate the use of certain breast implants under the Food and Drugs Act and regulations - They alleged that Health Canada failed to take action in the face of a known risk and, in doing so, acted contrary to its duty to protect consumers - A motion judge dismissed the proceeding on the basis that the plaintiffs' pleadings failed to disclose a cause of action - Health Canada sought costs on a partial indemnity basis of $1,074,448.20 - The motion judge ordered the plaintiffs to pay costs fixed at $125,000 - The plaintiffs appealed, arguing that the award was excessive in the circumstances, including the divided success below, the novelty of the claim and the claim's public interest nature - The Ontario Court of Appeal dismissed the appeal - It was open to the motion judge to conclude that the proceeding was not in the public interest and did not raise issues of such a novel nature as to justify a different costs disposition - The court was not persuaded that there was any error in principle in the costs determination - See paragraphs 79 and 80.

Practice - Topic 7029

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Novel or important point - [See Practice - Topic 210.3 ].

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Public interest or test case - [See Practice - Topic 210.3 ].

Practice - Topic 7053.1

Costs - Party and party costs - Entitlement to - Class or representative actions - [See Practice - Topic 210.3 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See both Crown - Topic 1563 ].

Torts - Topic 78

Negligence - Duty of care - Effect of statutory precautions or safeguards on the scope of the duty of care - [See both Crown - Topic 1563 ].

Torts - Topic 81

Negligence - Duty of care - Requirement that duty be owed to plaintiff - [See second Crown - Topic 1563 ].

Torts - Topic 226

Negligence - Exercise of statutory power - General - [See both Crown - Topic 1563 ].

Torts - Topic 9157.2

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Public health authorities - [See both Crown - Topic 1563 ].

Cases Noticed:

Drady v. Canada et al., [2008] O.T.C. Uned. 149; 2007 CanLII 27970 (Sup. Ct.), refd to. [para. 3, footnote 1].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 17].

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 (CanLII), refd to. [para. 17].

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 (CanLII), refd to. [para. 17].

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361; 2004 SCC 36 (CanLII), refd to. [para. 18].

Swanson Estate v. Canada - see Swanson and Peever v. Canada.

Swanson and Peever v. Canada (1991), 124 N.R. 218; 80 D.L.R.(4th) 741 (F.C.A.), refd to. [para. 18].

Baric v. Tomalk, [2006] O.T.C. 224; 38 C.C.L.T.(3d) 300 (Sup. Ct.), refd to. [para. 18].

Klein v. American Medical Systems Inc. et al. (2006), 219 O.A.C. 49; 84 O.R.(3d) 217; 2006 CanLII 42799 (Div. Ct.), refd to. [para. 20].

Eliopoulos et al. v. Ontario (Ministry of Health and Long-Term Care) (2006), 217 O.A.C. 69; 82 O.R.(3d) 321; 2006 CanLII 37121 (C.A.), refd to. [para. 20].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401; 2004 CanLII 45444, refd to. [para. 23].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68 (CanLII), refd to. [para. 23].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 1990 CanLII 90, refd to. [para. 23].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; 1984 CanLII 21, refd to. [para. 25].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 26].

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

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 (CanLII), refd to. [para. 27].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41 (CanLII), refd to. [para. 27].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18 (CanLII), refd to. [para. 28].

Welbridge Holdings Ltd. v. Winnipeg (Greater), [1971] S.C.R. 957; 1970 CanLII 1, refd to. [para. 33].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; 1989 CanLII 16, refd to. [para. 34].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1; 1994 CanLII 121, refd to. [para. 34].

Swinamer v. Nova Scotia (Attorney General) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321; 1994 CanLII 122, refd to. [para. 34].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69 (CanLII), refd to. [para. 36].

Holland v. Saskatchewan et al. (2008), 376 N.R. 316; 311 Sask.R. 197; 428 W.A.C. 197 (S.C.C.), refd to. [para. 38].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425; 1983 CanLII 21, refd to. [para. 38].

Klein v. American Medical Systems Inc. et al., [2005] O.T.C. Uned. A42 (Sup. Ct.), refd to. [para. 47].

Sauer v. Canada (Attorney General) et al. (2007), 225 O.A.C. 143 (C.A.), leave to appeal dismissed (2008), 389 N.R. 393 (S.C.C.), refd to. [para. 48].

Sauer v. Canada (Attorney General) et al., [2008] O.T.C. Uned. I57; 79 O.R.(3d) 19; 2006 CanLII 74 (Sup. Ct.), refd to. [para. 49, footnote 7].

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; 1997 CanLII 345, refd to. [para. 53].

Street v. Ontario Racing Commission et al. (2008), 232 O.A.C. 346; 88 O.R.(3d) 563; 2008 ONCA 10 (CanLII), refd to. [para. 57].

A.O. Farms Inc. v. Canada (Minister of Agriculture) et al., [2000] F.T.R. Uned. 510 (T.D.), refd to. [para. 65].

Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189; 1973 CanLII 6, refd to. [para. 68].

Pearson v. Inco Ltd. et al. (2006), 208 O.A.C. 284; 79 O.R.(3d) 427; 2006 CanLII 7666 (C.A.), refd to. [para. 80].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, vol. 4 (April 21, 1953), p. 4141 [para. 55].

Hansard - see Canada, Hansard, House of Commons Debates.

Counsel:

Kirk M. Baert, Celeste Poltak and John Legge, for the appellants;

Paul J. Evraire and James Max Soldatich, for the respondents;

S. Wayne Morris, for the third party.

This appeal was heard on May 27, 2008, before Lang, Juriansz and MacFarland, JJ.A., of the Ontario Court of Appeal. Lang, J.A., delivered the following decision for the Court of Appeal on September 30, 2008.