Heaslip Estate v. Mansfield Ski Club Inc. et al.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Sharpe, Watt and Epstein, JJ.A.
• Neutral Citation: 2009 ONCA 594
• Citation: 2009 ONCA 594,(2009), 252 O.A.C. 1 (CA),96 OR (3d) 401,310 DLR (4th) 506,67 CCLT (3d) 1,[2009] OJ No 3185 (QL),179 ACWS (3d) 1224,252 OAC 1,96 O.R. (3d) 401,[2009] O.J. No 3185 (QL),310 D.L.R. (4th) 506,(2009), 252 OAC 1 (CA),252 O.A.C. 1
• Date: 19 June 2009

Heaslip Estate v. Mansfield Ski Club Inc. (2009), 252 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. AU.004

The Estate of Patrick Heaslip, deceased, Denise Heaslip, Gary Heaslip and Greg Heaslip (plaintiffs/appellants) v. Mansfield Ski Club Inc., Mansfield Ski Club, John Lowe, Dr. Jason Oliver Hirst, Dr. Izabella Kogan, Dr. Clifford Lester Adelbert Affoo, Dr. Adebusola Onabajo Ayodeji Onayemi, Stevenson Memorial Hospital, Kim Douglas, Jane Doe, Her Majesty the Queen in Right of the Province of Ontario, as represented by the Minister of Health and Long Term Care , Ontario Air Ambulance Services Co., ORNGE, the County of Simcoe, County of Simcoe Paramedic Services, B. Van Niekerk and C. Farnady (defendants/respondent)

(C49812; 2009 ONCA 594)

Indexed As: Heaslip Estate v. Mansfield Ski Club Inc. et al.

Ontario Court of Appeal

Sharpe, Watt and Epstein, JJ.A.

July 28, 2009.

Summary:

Heaslip died following a tobogganing accident. The plaintiffs (Heaslip's estate and family members) alleged that Ontario was negligent because it failed to prioritize Heaslip's medical needs and send or divert an air ambulance to transport him to a hospital capable of treating his injuries. Ontario moved to strike the statement of claim against it on the ground that it disclosed no reasonable cause of action.

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. P57, granted the motion, holding that the statement of claim failed to allege facts against Ontario giving rise to a private law duty of care. The plaintiffs appealed.

The Ontario Court of Appeal allowed the appeal. While the court agreed that certain allegations in the claim asserted purely public law duties and had to be struck, the core of the plaintiffs' claim was centred on a specific set of facts that were alleged to have arisen when Ontario was asked to provide an air ambulance to carry Heaslip to a hospital capable of treating his injuries. It was arguable that those facts, if proven, were capable of supporting the existence of a duty of care upon the province. The court set aside the motion judge's order and substituted an order striking out certain subparagraphs and words in the statement of claim, but otherwise dismissing Ontario's motion to strike.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Policies or "policy" decisions - [See Torts - Topic 77 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Torts - Topic 77 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - Heaslip died following a tobogganing accident - The plaintiffs (Heaslip's estate and family members) alleged that Ontario was negligent because it failed to prioritize Heaslip's medical needs and send or divert an air ambulance to transport him to a hospital capable of treating his injuries - A motion judge struck the statement of claim against Ontario, holding that it failed to allege facts giving rise to a private law duty of care owed by Ontario to Heaslip - The judge held that the duties of the Minister of Health and Long Term Care were owed to the public at large, not to any individual member - Accordingly, there did not exist the necessary proximate relationship - The motion judge also held that if a prima facie duty of care did arise, it was negated by residual policy concerns - The Ontario Court of Appeal allowed the plaintiffs' appeal - While certain allegations in the claim asserted purely public law duties and had to be struck, the core of the plaintiffs' claim was centred on a specific set of facts that were alleged to have arisen when Ontario was asked to provide an air ambulance to carry Heaslip to a hospital capable of treating his injuries - It was arguable that those facts, if proven, were capable of supporting the existence of a duty of care upon the province either on the basis that the claim alleged a duty of care that fell within an established category, or because the facts alleged brought Heaslip into a direct relationship with Ontario that was sufficiently proximate to satisfy the Cooper-Anns test for recognizing a new category of duty of care - The motion judge also erred with respect to the second stage of the Cooper-Anns analysis by concluding that any duty of care was negated by residual policy concerns - The motion judge's concerns regarding the risk of indeterminate liability failed to take into account the very specific nature of the claim - The motion judge also erred in characterizing the claim as implicating a policy decision as opposed to an operational decision.

Torts - Topic 78

Negligence - Duty of care - Effect of statutory or policy precautions or safeguards on the scope of the duty of care - [See Torts - Topic 77 ].

Torts - Topic 81

Negligence - Duty of care - Requirement that duty be owed to plaintiff - [See Torts - Topic 77 ].

Torts - Topic 9157.2

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Public health authorities - [See Torts - Topic 77 ].

Cases Noticed:

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, appld. [para. 11].

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

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. 13].

Attis v. Canada (Minister of Health) (2008), 93 O.R.(3d) 35 (C.A.), refd to. [para. 13].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 18].

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

Sauer v. Canada (Attorney General) et al. (2007), 225 O.A.C. 143 (C.A.), refd to. [para. 21].

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361, refd to. [para. 21].

Finney v. Barreau du Québec - see McCullock-Finney v. Barreau du Québec.

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 21].

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. 25].

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, refd to. [para. 27].

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

Williams v. Canada (Attorney General) et al. (2009), 249 O.A.C. 150; 2009 ONCA 378, refd to. [para. 29].

Counsel:

Adam Little, for the appellants;

Robert Ratcliffe, for the respondent.

This appeal was heard on June 19, 2009, before Sharpe, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Sharpe, J.A., and was released on July 28, 2009.