By arthur Weinreb
Tuesday, November 7, 2006
Last Friday the Ontario Court of appeal handed down a decision that hopefully dispels the notion that many people have about their various levels of government. This decision runs contrary to the view that the nanny state is and should be held liable for each and every mishap that befalls every one of its citizens. There are, according to the court, just some things that governments are not responsible for.
In 2002, George Eliopoulos of Mississauga was bitten by a mosquito. He contracted West Nile Virus and died the following year. His estate and close family members commenced a legal action against the province of Ontario, alleging that the province was negligent with their plan to combat West Nile. The case of Eliopoulos v. Ontario is just one of many similar cases that are making their way through the province's courts.
after the lawsuit was commenced, the government brought a motion to strike out the statement of claim on the grounds that it did not disclose a cause of action. Both the motions judge and Ontario's Divisional Court rejected the province's argument. The government sought and obtained leave to appeal to Ontario's highest court.
On November 3, the Ontario Court of appeal allowed the appeal, agreeing with the province that the statement of claim disclosed no cause of action known at law.
The issue that was before the court was whether or not, in addition to any public duty that they might have, the province of Ontario had a private law duty to Mr. Eliopoulos that would give rise to an action in negligence. a party that moves to strike out a statement of claim has an extremely high burden to meet. Under the rules, they must show "that it is plain, obvious and beyond doubt that the plaintiff could not succeed”. When such a motion is brought, all of the facts that the plaintiff alleges are presumed to be true unless they totally incapable of belief. Despite this high onus, the three member panel of the Court of appeal unanimously found that the death of George Eliopoulos from West Nile Virus disclosed no cause of action against the province.
The province of Ontario responded to the West Nile outbreak by formulating and implementing a plan to combat the disease. But the court found that this plan was one of policy and not an operational one that would give rise to an action in negligence. Writing for the court, Justice Robert Sharpe wrote:
"The risk of contracting disease spread by mosquitoes is one to which all who live in Ontario are exposed. It is not a risk that is created by the provincial government or that arises from the use of a public facility, such as a highway, provided by Ontario. In deciding how to protect its citizens from risks of this kind that do not arise from Ontario's actions and that pose a differentiated threat to the entire public, Ontario must weigh and balance the many completing claims for the scarce resources available to promote and protect the health of its citizens.”
The above paragraph stands for the proposition that the government, in this case the province of Ontario, cannot be made liable for any and all adverse consequences that life has to offer even when the government comes up with a plan to minimize a particular threat to the general population. a clear distinction was made between things like roads that the province builds and maintains and therefore has a duty not to be negligent and mosquitoes that are not the creation of government. Dalton McGuinty and his boys and girls can be blamed for a lot of things, but mosquitoes and other flying insects are not among them.
Leave will undoubtedly be sought by the estate and relatives of George Eliopoulos to appeal this decision to the Supreme Court of Canada. Let's hope the logical reasoning of Ontario's appellate court will be upheld.
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