Taylor v. Canada (Attorney General) 2012 ONCA 479
Crown - Torts by and against Crown - Negligence by Crown - Failure to enforce legislation (incl. regulations)
In 1988, a “Vitek TMJ implant” was inserted into Taylor’s right temporomandibular joint. She asserted that this resulted in catastrophic consequences, including permanent total disability. Taylor sued Canada, alleging that Health Canada was negligent in the exercise of its responsibilities under the Food and Drugs Act. Canada asserted that the claim did not allege facts that could support a finding that Health Canada owed a private law duty of care to Taylor. The questions before the court, by way of a stated case, were (1) “What are the requirements in a statement of claim to establish sufficient proximity between the plaintiff and the defendant in a claim brought against a governmental body for regulatory negligence?” and (2) “Does the amended statement of claim in this action satisfy those requirements?”
The Ontario Court of Appeal held that there was no definitive answer to the first question, stating, “The requirements for proximity are diverse and depend on the facts of each particular case”. Question 2 was answered as follows: “At this stage of the proceedings, it is not plain and obvious that the allegations in the Fresh Statement of Claim cannot support a finding that Health Canada owed the plaintiff a prima facie private law duty of care.”
Editor’s Note: For the decision granting the plaintiff’s motion for leave to have a special case determined under rules 22.01 and 22.03 of the Rules of Civil Procedure, see (2011), 277 O.A.C. 12.