Speaker's Corner: Who then in law is a public servant’s neighbour?

As a legislative drafter who has been writing laws for governments for over two decades, I was dumbfounded by Professor Lewis Klar’s recent article in another legal newspaper analysing the cases of Attis v. Canada and Drady v. Canada.The cases claim catastrophic, personal and physical harm caused by gross negligence committed by the federal Crown. The Ontario Court of Appeal decided the pleadings disclosed no cause of action.

Klar asks if there was a legislative intention to create a private law duty of care. This question indicates a misunderstanding of both legislative intention and tort law. I respectfully submit that the proper question is whether courts should ignore the 1953 statutory reversal of the common law immunity of the federal Crown.

These cases amount to judicial extinction of the private law right of action granted by plain words in a simple and direct statute. This might trouble even lawyers or academics who lament so-called “judicial activism.”

The Crown Liability and Proceedings Act provides that the Crown in right of Canada is liable in tort as if it were a private person of full age and capacity.

Lawyers should be able to assume that statutes will have their intended effect. It is for Parliament to exempt the Crown from liability. We hardly need the courts creating an immunity not enacted by Parliament.

Let us recall first principles in tort, Lord James Atkin’s decision in Donoghue v. Stevenson and the test set out in Anns v. Merton London Borough Council.

The principle that a duty of care exists between a consumer and a manufacturer and between a member of the public and a regulator has been accepted for decades, despite their lack of any direct relationship. In any event, the Food and Drugs Act was enacted to protect consumers of medical devices and drugs.

This legal regime was enacted and funds appropriated to protect people just like Attis and Drady. In addition, the Department of Health Act expressly entrusts the Minister of Health with powers, duties, and functions to promote and preserve the physical, mental, and social well-being of the people of Canada.

How can it sensibly be said that the relationship between Health Canada and Attis or Drady (users of medical devices) is less proximate than between the B.C. Dept. of Highways and Mr. Just (a user of a highway)?

The relationship between Health Canada and primary users of medical devices is the most direct relationship imaginable. That is their job. It cannot sensibly be said that their relationship is more remote than that between a manufacturer and a purchaser of ginger beer; nor more remote than the relationship between Transport Canada and the travelling public.

The facts pleaded in Attis and in Drady are of actual direct knowledge of danger and probable, if not certain, harm to users of the medical implants at issue. How can actual direct knowledge of danger and harm not create proximity in fact?

Attis and Drady are not cases of economic loss or negligent misrepresentation. The proximity analysis in Cooper v. Hobart, used by the Court of Appeal, might be slightly more relevant in a purely economic loss case - a situation where the second part of the test in Anns would also be relevant.

But any consideration of the policy issues involved in the second part of the Anns test would require the production of evidence and a trial, and so could not be summarily dismissed before certification.

Cooper, as well as Edwards v. Law Society of Upper Canada, concerned negligence claims against provincial authorities for pure economic loss, and no interpretation of the Crown Liability and Proceedings Act.

Attis and Drady pleaded (and those pleadings must be accepted as true) that Health Canada knew of the dangers and did nothing to protect the public. In fact, Health Canada maintains it still has no duty to warn the public about the dangers of these devices.

In any event, at its best, Cooper does not stand for the proposition that proximity must be found in the statute. In Cooper neither the plaintiffs nor the Registrar of Mortgage Brokers knew of each other’s existence before the alleged cause of action arose.

Attis and Drady are opposite to the Cooper situation of non-relationship. Health Canada operates Canada’s only human medical device oversight inspectorate. Health Canada cannot be said to not know that there would be a discrete group of individuals who would use the devices that it reviews and regulates.

It is perhaps time for the law to come back to the reality stated by Linden J.A. in Swanson Estate v. R.: “While governments must certainly be free to govern, it is not acceptable for all bureaucrats who must exercise professional judgment to clothe themselves in the vestments of policy-making functions and thereby seek to avoid any responsibility for their negligence.

This is especially so for officials charged with the duty of maintaining safety. They cannot be protected by an immunity, but must be encouraged, just like other professionals, to perform their duties carefully. They must learn that negligence, like crime, does not pay.”

Finally, the concerns over creating indeterminate Crown liability, or externalizing private costs onto the public purse, do not arise in Attis or Drady. Our provincial and territorial medical and welfare systems must pay much of the health care and related costs arising from federal inspectors’ negligence.

Recognizing the federal duty of care merely allocates the costs of negligence to those public servants who are best able to avoid causing the damage in the first place.

In reality, Attis and Drady endanger individual Canadians by exempting inspectors from liability for their gross negligence, where Parliament conspicuously did not do that itself.

Patrick Orr, BA, LLB & Dip LD, is a member of the bars of Ontario, N.W.T., and Nunavut and has practised as a legislative counsel since 1983. He has acted as counsel on issues of statutory interpretation and regulatory negligence in relation to medical devices litigation. He can be reached at [email protected].

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