Today the Court of Appeal released its reasons in the very important Attis v. Canada (Health), 2008 ONCA 660 decision dealing with potential government liability.
The case dealt with breast implants and a federal duty, or not, to ensure the safety of the implants. The Court ruled against the duty existing.
The decision is very helpful in general dealing with when a government may be liable to an individual.
One issue (among many) discussed by the Court was when a statute creates a duty to individuals. The Court held that where legislation creates a duty to the public, as a whole, and not to individuals, generally there was not sufficient neighbourhood for a tort claim against the government by an individual.
The Court holds:
[59] Since an examination of the legislative scheme reveals that no duty is placed on Health Canada , and all obligations are on the industry, I conclude that the statute signals an intention that the government's duty is owed to the public as a whole, not to the individual consumer.
[60] I find support for this conclusion from two other decisions, both of which also considered circumstances that involved public safety regulation. Eliopoulos involved a claim against Ontario's Minister of Health for breach of an alleged private law duty of care to an individual plaintiff to control the spread of the West Nile Virus. Sharpe J.A., writing for this court, concluded that it was plain and obvious that there was no such duty because the Minister's powers under the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 were discretionary and the Minister's duties were owed to the public at large, not to the individual. Hence, there was no proximate relationship.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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