Taylor v. Canada (Minister of Health) et al., (2009) 264 O.A.C. 229 (CA)

• Judge: Laskin, Gillese and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 19, 2008
• Jurisdiction: Ontario
• Citations: (2009), 264 O.A.C. 229 (CA);2009 ONCA 487

Taylor v. Can. (2009), 264 O.A.C. 229 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.011

Kathryn Anne Taylor (plaintiff) v. Her Majesty the Queen in Right of Canada as Represented by The Minister of Health, The Attorney General of Canada (defendant/appellant) and University Health Network (Formerly Toronto General Hospital), and Dr. W. Dobrovolosky (third parties/respondents)

(C48750; 2009 ONCA 487)

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

Ontario Court of Appeal

Laskin, Gillese and Blair, JJ.A.

June 17, 2009.

Summary:

Taylor's class action alleged that she suffered injuries as a result of the surgical implantation of a device in her jaw. She claimed that Health Canada's negligent regulation of the devices caused her injuries. From Health Canada, she sought "only those damages that are attributable to its proportionate degree of fault". The Attorney General of Canada, for Health Canada, brought a third party claim against the dental surgeon who performed the surgery and the hospital (the third parties). The third parties moved to dismiss the third party claim on the ground that it disclosed no reasonable cause of action.

The Ontario Superior Court granted the motion. The Attorney General appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 1121

Parties - Third party or subsequent party procedure - When available - Claim for contribution or indemnity - Taylor's class action alleged that she suffered injuries as a result of the surgical implantation of a device in her jaw - She claimed that Health Canada's negligent regulation of the devices caused her injuries - From Health Canada, she sought "only those damages that are attributable to its proportionate degree of fault" - The Attorney General of Canada, for Health Canada, brought a third party claim against the dental surgeon who performed the surgery and the hospital (the third parties) - Cullity, J., granted the third parties' motion to dismiss the claim against them as "untenable" - The Attorney General appealed, asserting, inter alia, that Taylor's injuries were indivisible and that, therefore, if the third party claim was not allowed, Health Canada might be unfairly held liable for the negligent acts of the third parties - The Ontario Court of Appeal dismissed the appeal - Contribution rights arose only where a defendant was required to pay more than its proportionate share of a plaintiff's damages - Here, Taylor had limited her claim and those of the class members to those losses attributable to Health Canada's negligence - She was not seeking all of her damages from Health Canada - Health Canada had no claim over against the third parties - See paragraphs 14 to 22.

Practice - Topic 1121

Parties - Third party or subsequent party procedure - When available - Claim for contribution or indemnity - Taylor's class action alleged that she suffered injuries as a result of the surgical implantation of a device in her jaw - She claimed that Health Canada's negligent regulation of the devices caused her injuries - From Health Canada, she sought "only those damages that are attributable to its proportionate degree of fault" - The Attorney General of Canada, for Health Canada, brought a third party claim against the dental surgeon who performed the surgery and the hospital (the third parties) - Cullity, J., granted the third parties' motion to dismiss the claim against them as "untenable" - The Attorney General appealed, asserting, inter alia, that because a court could not apportion fault under the Negligence Act against a person who was not a party, if the third party claim was struck, Health Canada might potentially bear 100% of Taylor's damages - The Ontario Court of Appeal dismissed the appeal - A judge had jurisdiction under s. 1 of the Negligence Act to apportion fault against a person who was not a party to the action and could exercise that jurisdiction in appropriate cases - Section 1 spoke of apportioning fault between "persons", rather than between "parties" - Further, s. 5 spoke of adding a "person" who was not already a party to the action - The Act recognized that a court had jurisdiction to apportion fault against a person who was not a party - This interpretation promoted streamlining litigation - Here, it was appropriate to determine whether or not to apportion fault against the doctor or the hospital, although neither was a party - This would result in fewer parties at trial, a shorter trial and reduced costs - See paragraphs 23 to 29.

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - [See second Practice - Topic 1121 ].

Torts - Topic 7377

Joint and concurrent tortfeasors - Contribution between tortfeasors - Claim for - General - [See first Practice - Topic 1121 ].

Torts - Topic 7382

Joint and concurrent tortfeasors - Contribution between tortfeasors - Apportionment of fault - General - [See second Practice - Topic 1121 ].

Cases Noticed:

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 14].

Holthaus et al. v. Bank of Montreal et al. (2000), 131 O.A.C. 119 (C.A.), refd to. [para. 21].

Martin v. Listowel Memorial Hospital et al. (2000), 138 O.A.C. 77; 51 O.R.(3d) 384 (C.A.), refd to. [para. 23].

Misko v. John Doe et al. (2007), 229 O.A.C. 124; 87 O.R.(3d) 517 (C.A.), refd to. [para. 25].

J.M. et al. v. Bradley et al. (2004), 187 O.A.C. 201; 71 O.R.(3d) 171 (C.A.), refd to. [para. 26].

Ontario New Home Warranty Program et al. v. Chevron Chemical Co. et al. (1999), 99 O.T.C. 384; 46 O.R.(3d) 130 (Sup. Ct.), refd to. [para. 30].

Counsel:

Paul J. Evraire and James Max Soldatich, for the appellant, the Attorney General of Canada;

Patrick J. Hawkins, for the respondent, University Health Network;

Margaret L. Waddell, for the respondent, Dr. W. Dobrovolosky;

Grace Tsang, for the plaintiff, Kathryn Anne Taylor.

This appeal was heard on December 19, 2008, by Laskin, Gillese and Blair, JJ.A., of the Ontario Court of Appeal. On June 17, 2009, Laskin, J.A., delivered the following judgment for the court.