Canada: SARS Update on Claims Against Government Defendants

Last Updated: November 14 2005

By Michael McKelvey and Barbara Walker-Renshaw

Originally published Fall 2005

Unbeknownst to many Ontarians, the SARS outbreak prompted a flurry of civil claims. There is a class action being pursued on behalf of anyone who contracted SARS, or anyone related to anyone who contracted SARS, between April 20, 2003 and July 31, 2003. In addition, many of the nurses who contracted SARS are pursuing a claim and finally several groups of individual plaintiffs are suing for damages arising from the SARS outbreak. The various plaintiffs have selected different defendants to target in their litigation. The class action was brought against three levels of government – Government of Canada (Health Canada), Government of Ontario (Ministry of Health and Long Term Care) and the City of Toronto, while the nurses are claiming only against the Ontario Government. The individual actions have named a variety of defendants including the Ontario Government, hospitals and physicians.

The SARS outbreak and related litigation continues to garner media attention. Below, we aim to explain the media coverage and to outline what is happening in the SARS litigation. The government involvement in this litigation is unique. Typically, front line care providers – hospitals, nurses and physicians – are called to account in civil actions to defend the care provided to a particular patient. Plaintiffs who have sought to involve a government defendant – for example by alleging that a lack of funding contributed to substandard care – have failed. SARS may become one of the first cases in which the Ontario Government is required to defend its conduct in managing a particular issue in the healthcare system. The outcome of this litigation could have a significant impact on future claims.

Rule 21 Motion – Governments Seek to Have SARS Claims Dismissed

In each of the actions in which government defendants are named as defendants, they brought a motion seeking to have the claim dismissed. This is called a Rule 21 motion. In this type of motion a Court is required to determine, on the basis of the pleadings alone, whether there is a legal argument to support the plaintiffs’ claim. In order to have a claim against a defendant dismissed on a Rule 21 motion, it must be "plain and obvious" that the action cannot proceed. The motions in this case were heard before the Honourable Justice Cullity of the Ontario Superior Court.

In the class proceeding, Justice Cullity struck the pleadings in their entirety against the Government of Canada and the City of Toronto, accordingly, the action as against these defendants was dismissed.

In contrast, Mr. Justice Cullity ruled that the Ontario Government remain the sole defendant in the class action. Justice Cullity struck out some of the allegations made by the plaintiffs but allowed them to continue with many of the allegations. He made the same decision in a few other individual actions in which the Ontario Government has been named as a defendant.

At the motion, the Ontario Government took the position that it did not owe a private duty of care to the plaintiffs. It argued that any duty that was owed was only a duty to the public at large and did not create responsibility to any of the individual plaintiffs.

In order to establish a private duty of care against a government defendant the case law requires that the harm (contracting of SARS) be reasonably foreseeable and that there be a close and direct relationship between the parties. If the plaintiff can establish that the harm was foreseeable and the relationship was direct or proximate then the Court assumes that a duty of care has been established.

If the plaintiff crosses this hurdle, the Court must consider whether there are residual policy considerations, outside the relationship, that would override the government actor’s assumed duty of care. With respect to government defendants the courts have held that a duty of care will not be imposed where the government is acting in a policy-making role as opposed to performing an operational function, often stating that governments are to be judged for their "policy" decisions at the polls, not by a judge in a courtroom.

As expected, much of the argument at the hearing of the Rule 21 motions focused on whether the various governments were acting in a policy making or operational role during the SARS outbreak. The government lawyers suggested that it was all policy while the plaintiffs argued that the conduct was operational in nature.

Justice Cullity accepted that the Federal Government was acting in a policy-making capacity. However, he ruled that with respect to some of the allegations against the Ontario Government he could not make this decision without evidence to be heard at a trial. In coming to this decision, Justice Cullity ruled that it was not "plain and obvious" that the plaintiffs would be unable to establish proximity between the Government of Ontario and the plaintiffs in the class action. Furthermore, it was not "plain and obvious" that the Government of Ontario was acting in a policy-making rather than an operational capacity.

The City of Toronto was successful in having the claim against it struck on the basis that the Toronto Board of Health is a separate legal entity from the City of Toronto. Thus, the City of Toronto is not in law responsible for the conduct of the Board of Health. Similar motions were heard in the other individual actions involving the Ontario Government. Justice Cullity’s rulings are now under appeal. The Ontario Government is appealing in the hopes of having all of the claims against it struck out. The plaintiffs, in turn, are appealing to have the allegations that were struck out reinstated.

The ultimate outcome of these motions, after all appeals are exhausted, will have a significant impact on the legal landscape in Ontario. If the plaintiffs succeed, it will demonstrate a slight opening of the door in an effort to hold governments legally accountable for actions of an operational nature. It could also open the door to increasing litigation against government defendants, especially when governments engage in responding to unforeseen emergencies. Alternatively, if the Government prevails at the end of the day, it will be considered much more difficult to pursue a claim against a government defendant. The issues at stake are significant – both for the individual people involved and the important legal issue under debate. We would not be surprised to see these issues debated at the highest court in the land – the Supreme Court of Canada.

Michael McKelvey and Barbara Walker-Renshaw of Borden Ladner Gervais LLP represented the interests of the defendant Hospitals on these motions. The leading decision of the five Rule 21 motions can be found on line at

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions