Court of Appeal

Government Owes No Duty of Care During Pandemic

The Ontario Court of Appeal recently upheld a lower court decision barring nurses from suing the Ontario government for negligence which they alleged occurred during the 2003 SARS pandemic. In a related decision, the Court also held that members of the public who fell ill with SARS have no claim against the government for failing to effectively contain the spread of SARS.

In Abarquez v. Ontario, 53 registered nurses who contracted SARS between March and July 2003 brought claims for damages against the Ontario government for negligence and breach of their Charter rights. The nurses alleged that mandatory directives issued by the government to hospitals during the pandemic pursuant to the Health Protection and Promotion Act failed to protect the health of front line health care workers. In finding that the government owed no duty of care to the nurses, the Court of Appeal concluded:

    When developing a public policy and elaborating standards in relation to the containment of SARS, the interests of Ontario’s compassionate and courageous nurses were but one of the myriad of factors to be weighed and balanced…Recognizing a duty of care to protect the health of the nurses would raise the potential for conflict with the overarching duty to the public at large. Where recognizing a private law duty of care on the part of a public authority towards a certain class of individuals could conflict with the public authority’s overarching duty, proximity does not exist and no private law duty should be found.

In Williams v. Ontario, an individual attempted to initiate a class action against the Ontario government for failing to take effective precautions and implement sufficient safeguards to prevent the 2003 outbreak of SARS. The Court of Appeal found that no duty of care had been established. The Court concluded that public officials charged with responsibility for imposing and lifting measures to combat SARS have to weigh and balance many considerations and then act in a manner that best meets the overall interests of the public at large.

These decisions are of interest to employers and members of the public alike in light of recent concerns regarding the outbreak of the H1N1 flu virus.

Abarquez v. Ontario, 2009 ONCA 374

Williams v. Ontario, 2009 ONCA 378