Drady v. Canada (Health),

• Jurisdiction: Ontario
• Judge: Lang, Juriansz and MacFarland, JJ.A.
• Neutral Citation: 2008 ONCA 659
• Citation: (2008), 270 O.A.C. 1 (CA),2008 ONCA 659,300 DLR (4th) 443,[2008] OJ No 3772 (QL),169 ACWS (3d) 683,270 OAC 1,68 CPC (6th) 306,[2008] O.J. No 3772 (QL),270 O.A.C. 1,(2008), 270 OAC 1 (CA),300 D.L.R. (4th) 443
• Date: 26 May 2008
• Court: Court of Appeal (Ontario)

Drady v. Can. (2008), 270 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.044

Kevan Drady (plaintiff/appellant/respondent by cross-appeal) v. Her Majesty the Queen in Right of Canada as represented by the Minister of Health, The Attorney General of Canada (defendant/respondent) and Baxter Healthcare Corporation, Baxter International Inc., Inamed LLC, Dow Corning Corporation, DCC Litigation Facility Inc., Medtronic Xomed Surgical Products Incorporated, Smiths Medical Canada Ltd., Bristol Myers Squibb Company, Religious Hospitallers of Saint Joseph of the Hôtel Dieu of Kingston, Dr. A.K. Wyllie (third parties/respondents/appellants by cross-appeal)

(C47556; 2008 ONCA 659)

Indexed As: Drady v. Canada (Minister of Health)

Ontario Court of Appeal

Lang, Juriansz and MacFarland, JJ.A.

September 30, 2008.

Summary:

Drady alleged that a TMJ implant that he received in 1981 was unsafe and caused irreversible consequences that left him disabled and in pain. Since the device implanted in Drady was unlabelled, he was unable to identify its manufacturer. Drady sued Health Canada in a proposed class proceeding, alleging, in essence, that Health Canada failed to properly regulate the TMJ industry as a whole. Drady pleaded that Health Canada failed to ensure the implants' safety and regulatory compliance and that Health Canada was negligent in failing to prohibit the devices and warn the public and users about their risks. The Crown moved to strike the statement of claim on the ground that it disclosed no reasonable cause of action in negligence.

The Ontario Superior Court, in a decision reported at [2007] O.T.C. Uned. F30, dismissed Drady's claim under rule 21.01(1)(b) of the Rules of Civil Procedure on the ground that it was plain and obvious that the claim disclosed no reasonable cause of action. Drady appealed.

The Ontario Court of Appeal dismissed the appeal.

Crown - Topic 1563

Torts by and against Crown - Negligence by Crown - Breach of statutory duty - Drady alleged that a TMJ implant that he received in 1981 was unsafe and caused irreversible consequences that left him disabled and in pain - Since the device implanted in Drady was unlabelled, he was unable to identify its manufacturer - Drady sued Health Canada in a proposed class proceeding, alleging, in essence, that Health Canada failed to properly regulate the TMJ industry - He pleaded that Health Canada failed to ensure the implants' safety and regulatory compliance and that Health Canada was negligent in failing to prohibit the devices and warn the public and users about their risks - A motion judge dismissed Drady's claim on the ground that it disclosed no reasonable cause of action in negligence - Drady appealed - The Ontario Court of Appeal dismissed the appeal - The motion judge erred to the extent that he based his decision on Drady's inability to identify the manufacturer - Since it was alleged that a component of Health Canada's negligence was a failure to properly regulate all TMJ implants in a number of respects, it was an error to strike the claim on the basis of the non-identification - However, the court held that the legislative scheme in place at the time did not support a finding of proximity - While the Food and Drugs Act and its regulations provided mechanisms for Health Canada to enforce compliance, enforcement was entirely discretionary - It was not mandatory - Moreover, the legislative scheme envisaged no relationship between Health Canada and the consumer of the medical devices - It followed that a private law duty of care to the individual consumer could not be inferred from the regulatory scheme - Accordingly, the court dismissed Drady's claim insofar as it alleged a breach of statutory duty - The court also held that, in the absence of a specific representation or reliance on Health Canada regarding the safety of the implant, it was plain and obvious that Drady could not establish a direct and close relationship of proximity that made it just and fair to impose a private law duty of care on Health Canada - In the absence of proximity, it was plain and obvious that the action could not succeed.

Crown - Topic 1571.1

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

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Crown - Topic 1563 ].

Torts - Topic 77

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

Torts - Topic 81

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

Torts - Topic 226

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

Torts - Topic 9157.2

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

Cases Noticed:

Taylor v. Canada (Attorney General) et al., [2007] O.T.C. 1960; 285 D.L.R.(4th) 296 (Sup. Ct.), affd. (2007), 233 O.A.C. 111; 289 D.L.R.(4th) 567 (Div. Ct.), consd. [para. 22].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 24].

Sauer v. Canada (Attorney General) et al. (2007), 225 O.A.C. 143 (C.A.), leave to appeal refused (2008), 389 N.R. 393; 256 O.A.C. 391 (S.C.C.), refd to. [para. 26].

Swanson and Peever v. Canada (1991), 124 N.R. 218; 80 D.L.R.(4th) 741 (F.C.A.), refd to. [para. 26].

Williams v. Canada (Attorney General) et al., [2005] O.T.C. 729; 76 O.R.(3d) 763 (Sup. Ct.), refd to. [para. 26].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 26].

Baric v. Tomalk et al., [2006] O.T.C. 224; 38 C.C.L.T.(3d) 300 (Sup. Ct.), refd to. [para. 33].

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

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, refd to. [para. 34].

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, refd to. [para. 34].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 35].

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361; 2004 SCC 36, refd to. [para. 35].

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. 35].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 35].

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.), refd to. [para. 35].

Klein v. American Medical Systems Inc. et al. (2006), 219 O.A.C. 49; 84 O.R.(3d) 217 (Div. Ct.), refd to. [para. 35].

Dunn v. Dominion Atlantic Railway Co. (1920), 60 S.C.R. 310, refd to. [para. 45].

Jordan House Ltd. v. Menow, [1974] S.C.R. 239, refd to. [para. 45].

Jane Doe v. Board of Police Commissioners of Metropolitan Toronto et al. (1998), 60 O.T.C. 321; 39 O.R.(3d) 487 (Gen. Div.), refd to. [para. 45].

Design Services Ltd. et al. v. Canada, [2008] 1 S.C.R. 737; 374 N.R. 77; 293 D.L.R.(4th) 437; 2008 SCC 22, refd to. [para. 51].

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, refd to. [para. 51].

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, refd to. [para. 51].

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

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 57].

Counsel:

Kirk M. Baert, Celeste Poltak and John Legge, for the appellant/respondent by cross-appeal;

Paul J. Evraire and James Max Soldatich, for the respondent, Her Majesty the Queen in Right of Canada as represented by the Minister of Health, the Attorney General;

Patrick O'Kelly, for the respondent/appellant by cross-appeal, Medtronic Xomed Surgical Products Incorporated;

S. Wayne Morris, for the respondent/appellant by cross-appeal, Dow Corning Corporation and DCC Litigation Facility Inc;

Christopher Wirth, for the respondent/appellant by cross-appeal, Inamed LLC;

Laura F. Cooper, for the respondent/appellant by cross-appeal, Bristol Myers Squibb Company;

Lisa M Constantine, for the respondent/appellant by cross-appeal, Dr. A.K. Wyllie;

Barry L. Glaspell, for the respondent/appellant by cross-appeal, Religious Hospitallers of Saint Joseph of The Hôtel Dieu of Kingston;

Mirilyn Sharp, for the respondents/appellants by cross-appeal, Baxter Healthcare Corporation and Baxter International Inc;

Robby Bernstein, for the respondent/appellant by cross-appeal, Smiths Medical Canada Ltd.

This appeal was heard on May 26, 2008, before Lang, Jurianz and MacFarland, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Lang, J.A., and was released on September 30, 2008.