Taylor v. Canada (Attorney General), (2012) 293 O.A.C. 312 (CA)

• Judge: Doherty, Weiler, Laskin, Sharpe and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 19, 2011
• Jurisdiction: Ontario
• Citations: (2012), 293 O.A.C. 312 (CA);2012 ONCA 479

Taylor v. Can. (A.G.) (2012), 293 O.A.C. 312 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JL.031

Kathryn Anne Taylor (plaintiff) v. The Attorney General of Canada (defendant)

(C53678; 2012 ONCA 479)

Indexed As: Taylor v. Canada (Attorney General)

Ontario Court of Appeal

Doherty, Weiler, Laskin, Sharpe and Armstrong, JJ.A.

July 6, 2012.

Summary:

In 1988, a "Vitek TMJ implant" was inserted into Taylor's right temporomandibular joint. She asserted that this resulted in catastrophic consequences, including permanent total disability. Taylor sued Canada, alleging that Health Canada was negligent in the exercise of its responsibilities under the Food and Drugs Act. Canada asserted that the claim did not allege facts that could support a finding that Health Canada owed a private law duty of care to Taylor. The questions before the court, by way of a stated case, were (1) "What are the requirements in a statement of claim to establish sufficient proximity between the plaintiff and the defendant in a claim brought against a governmental body for regulatory negligence?" and (2) "Does the amended statement of claim in this action satisfy those requirements?"

The Ontario Court of Appeal held that there was no definitive answer to the first question, stating, "The requirements for proximity are diverse and depend on the facts of each particular case". Question 2 was answered as follows: "At this stage of the proceedings, it is not plain and obvious that the allegations in the Fresh Statement of Claim cannot support a finding that Health Canada owed the plaintiff a prima facie private law duty of care."

Editor's Note: For the decision granting the plaintiff's motion for leave to have a special case determined under rules 22.01 and 22.03 of the Rules of Civil Procedure, see (2011), 277 O.A.C. 12.

Crown - Topic 1571.1

Torts by and against Crown - Negligence by Crown - Failure to enforce legislation (incl. regulations) - In 1988, a "Vitek TMJ implant" was inserted into Taylor's right temporomandibular joint - She asserted that this resulted in catastrophic consequences, including permanent total disability - Taylor sued Canada, alleging that Health Canada was negligent in the exercise of its responsibilities under the Food and Drugs Act - Taylor alleged that Health Canada owed a duty of care to protect her from unsafe medical devices and that it had negligently failed to perform that duty - Canada asserted that Health Canada did not owe a private law duty of care to Taylor - The question before the court, by way of a stated case, was "What are the requirements in a statement of claim to establish sufficient proximity between the plaintiff and the defendant in a claim brought against a governmental body for regulatory negligence?" - The Ontario Court of Appeal held that there was no definitive answer to the question, stating, "The requirements for proximity are diverse and depend on the facts of each particular case" - Proximity was one aspect of the broader duty of care inquiry - It was a concept, not a test - While the authorities were careful to deny that any one factor or combination of factors was necessary to establish proximity, certain factors routinely took a central role in the analysis - These included any representations made by a defendant, especially if made directly to the plaintiff, reliance by the plaintiff on those representations, the nature of the plaintiff's property or other interest engaged, the specific nature of any direct contact between the parties and the nature of the overall relationship - See paragraphs 63 to 69.

Crown - Topic 1571.1

Torts by and against Crown - Negligence by Crown - Failure to enforce legislation (incl. regulations) - In 1988, a "Vitek TMJ implant" was inserted into Taylor's right temporomandibular joint - She asserted that this resulted in catastrophic consequences, including permanent total disability - Taylor sued Canada, alleging that Health Canada was negligent in the exercise of its responsibilities under the Food and Drugs Act - Taylor alleged that Health Canada owed a duty of care to protect her from unsafe medical devices and that it had negligently failed to perform that duty - Canada asserted that Health Canada did not owe a private law duty of care to Taylor - The question before the court, by way of a stated case, was "What are the requirements in a statement of claim to establish sufficient proximity between the plaintiff and the defendant in a claim brought against a governmental body for regulatory negligence?" - The Ontario Court of Appeal held that there was no definitive answer to the question, stating, "The requirements for proximity are diverse and depend on the facts of each particular case" - Findings of proximity based on the interactions between the regulator and the plaintiff were necessarily fact-specific - The jurisprudence did, however, suggest that there were two important factual features in those cases where the court had found a prima facie duty of care - First, the facts demonstrated a relationship and connection between the regulator and the individual that was distinct from and more direct than the relationship between the regulator and that part of the public that was affected by the regulator's work - A finding of proximity was more readily made in cases where the regulator's actions directly impacted the plaintiff, causing the physical harm that gave rise to the claim - The second feature arose out of the nature of the duty actually imposed by the legislative scheme - While the statutory duties were found to be public duties and not, therefore, themselves the basis for any private law duty of care, those public duties had been found to be consistent with the existence of a private law duty owed to an individual plaintiff - See paragraphs 75 to 91.

Crown - Topic 1571.1

Torts by and against Crown - Negligence by Crown - Failure to enforce legislation (incl. regulations) - In 1988, a "Vitek TMJ implant" was inserted into Taylor's right temporomandibular joint - She asserted that this resulted in catastrophic consequences, including permanent total disability - Taylor sued Canada, alleging that Health Canada was negligent in the exercise of its responsibilities under the Food and Drugs Act - Taylor alleged that Health Canada owed a duty of care to protect her from unsafe medical devices and that it had negligently failed to perform that duty - Canada asserted that Health Canada did not owe a private law duty of care to Taylor - The question before the court, by way of a stated case, was "What are the requirements in a statement of claim to establish sufficient proximity between the plaintiff and the defendant in a claim brought against a governmental body for regulatory negligence?" - The Ontario Court of Appeal held that there was no definitive answer to the question, stating, "The requirements for proximity are diverse and depend on the facts of each particular case" - The court compared its decisions in Attis et al. v. Canada (Minister of Health) et al. (2008), Drady v. Canada (Minister of Health) (2008) and Sauer v. Canada (Attorney General) et al. (2007), concluding that a finding of proximity based entirely on a regulator's public acknowledgement of its public duties to those affected by its actions, coupled with reliance by those affected on the regulator's public statements, was inconsistent with the Supreme Court of Canada's rejection in British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011) of the claim that Health Canada owed a private law duty of care to consumers of low-tar cigarettes because it had made public representations as to the relative safety of those cigarettes - Although public representations by a regulator as to its public duties and obligations did not establish a relationship of proximity between the regulator and an individual plaintiff, they were properly included in the factual matrix to be considered in determining whether the interactions between a regulator and a plaintiff were sufficiently direct and close to warrant a finding of proximity - The detailed analyses of proximity in Attis and Drady, particularly in the light of the subsequent judgment in Imperial Tobacco, were more in line with the prevailing jurisprudence - Sauer was not consistent with that jurisprudence - See paragraphs 92 to 98.

Crown - Topic 1571.1

Torts by and against Crown - Negligence by Crown - Failure to enforce legislation (incl. regulations) - In 1988, a "Vitek TMJ implant" was inserted into Taylor's right temporomandibular joint - She asserted that this resulted in catastrophic consequences, including permanent total disability - Taylor sued Canada, alleging that Health Canada was negligent in the exercise of its responsibilities under the Food and Drugs Act - Taylor alleged that Health Canada owed a duty of care to protect her from unsafe medical devices and that it had negligently failed to perform that duty - Canada asserted that Health Canada did not owe a private law duty of care to Taylor - The Ontario Court of Appeal held that "At this stage of the proceedings, it is not plain and obvious that the allegations in the Fresh Statement of Claim cannot support a finding that Health Canada owed the plaintiff a prima facie private law duty of care." - The sustainability of Taylor's claim at this stage depended primarily on her allegations as to Health Canada's misrepresentations regarding the status of the Vitek implants between 1988 and 1990 and its failure to correct those misrepresentations in the following years during which the implants were sold into Canada without proper authorization - These allegations described a relationship between Health Canada and the implant users that was different from the relationship that existed between Health Canada and consumers of medical devices at large - The more difficult question was whether the allegations created a sufficiently close relationship to give rise to a private law duty of care - General representations made by the regulator to the public and relied on by the plaintiff as a member of the public did not, standing alone, create a direct relationship - However, general representations and reliance on those representations could, in combination with other factors, create a relationship between the regulator and the plaintiff that was sufficiently close and direct to render it fair and just to impose on the regulator, in the conduct of its duties, an obligation to be mindful of the plaintiff's legitimate interests - It was not clear that Taylor would succeed - However, the courtroom door could not be closed to Taylor at this stage - See paragraphs 99 to 120.

Crown - Topic 1576

Torts by and against Crown - Negligence by Crown - Negligent advice or misrepresentation - [See fourth Crown - Topic 1571.1 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See all Crown - Topic 1571.1 ].

Torts - Topic 9157.2

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Public health authorities - [See all Crown - Topic 1571.1 ].

Cases Noticed:

Drady v. Canada (Minister of Health), [2007] O.T.C. Uned. F30 (Sup. Ct.), affd. (2008), 270 O.A.C. 1; 300 D.L.R.(4th) 443 (C.A.), leave to appeal refused (2008), 396 N.R. 396; 260 O.A.C. 399 (S.C.C.), consd. [para. 3].

Attis et al. v. Canada (Minister of Health) et al., [2007] O.T.C. Uned. 770 (Sup. Ct.), affd. (2008), 254 O.A.C. 91; 93 O.R.(3d) 35 (C.A.), leave to appeal refused (2009), 396 N.R. 397; 260 O.A.C. 394 (S.C.C.), consd. [para. 3].

Sauer v. Canada (Attorney General) et al. (2007), 225 O.A.C. 143 (C.A.), leave to appeal refused (2008), 389 N.R. 393 (S.C.C.), consd. [para. 3].

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.), refd to. [para. 10].

Taylor v. Canada (Minister of Health) et al., [2010] O.T.C. Uned. 4799; 81 C.C.L.T.(3d) 106; 2010 ONSC 4799, refd to. [para. 17].

Hughes v. Sunbeam Corp. (Canada) Ltd. et al. (2002), 165 O.A.C. 68; 61 O.R.(3d) 433 (C.A.), refd to. [para. 21].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 22].

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

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011), 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 22].

Wellington et al. v. Ontario et al. (2011), 277 O.A.C. 318; 105 O.R.(3d) 81; 2011 ONCA 274, refd to. [para. 22].

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, refd to. [para. 65].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241, refd to. [para. 66].

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. 66].

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

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, dist. [para. 67].

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. 67].

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, refd to. [para. 72].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 72, footnote 8].

Heaslip Estate v. Mansfield Ski Club Inc. et al. (2009), 252 O.A.C. 1; 96 O.R.(3d) 401 (C.A.), refd to. [para. 73].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 78].

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. 78].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region 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. 78].

Fullowka et al. v. Pinkerton's of Canada et al., [2010] 1 S.C.R. 132; 398 N.R. 20; 474 A.R. 1; 479 W.A.C. 1; 2010 SCC 5, refd to. [para. 79].

Gorringe v. Calderdale Metropolitan Borough Council, [2004] N.R. Uned. 65; [2004] U.K.H.L. 15; [2004] 1 W.L.R. 1057, refd to. [para. 87].

Pyrenees Shire Council v. Day (1998), 192 C.L.R. 330 (H.C.A.), refd to. [para. 95, footnote 10].

Jane Doe v. Board of Police Commissioners of Metropolitan Toronto et al. (1990), 40 O.A.C. 161; 74 O.R.(2d) 225 (Div. Ct.), refd to. [para. 111].

Authors and Works Noticed:

Klar, L., The Tort Liability of Public Authorities: The Canadian Experience, in Degeling, S., Edelman, J., and Goudkamp, J., eds., Torts in Commercial Law (2011), c. 12 [para. 67, footnote 7].

Counsel:

Kirk Baert and Celeste Poltak, for the plaintiff;

P.J. Evraire, Q.C., Gina M. Scarcella and James M. Soldatich, for the defendant;

Cameron Pallett and Reynold Robertson, for the intervener, Bill Sauer.

This stated case was heard on September 19, 2011, by Doherty, Weiler, Laskin, Sharpe and Armstrong, JJ.A., of the Ontario Court of Appeal. On July 6, 2012, Doherty, J.A., delivered the following judgment for the court.