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West Nile Virus “Group Action” and Special Kids Ontario Class Action lawsuits: Province will attempt to overturn Court rulings favouring plaintiffs

Friday, September 8th 2006 4:58:28pm

Court of Appeal for Ontario, Osgoode Hall, Courtroom 2,
130 Queen Street West, Toronto, September 11-13th, 2006

Please note the exact order of proceeding has yet to be established.

In a Toronto Court, Monday (September 11) through Wednesday, the Province will attempt to overturn two judgments favouring the plaintiffs in the West Nile Virus (WNV) ”group action” and Special Kids Ontario (SKO) Class Action lawsuit.  

The Court of Appeal has directed that the appeals are to be heard by the same judges because both cases involve the question of the circumstances under which people injured by government action will be allowed to sue for damages. In each case being appealed, earlier judgments confirmed the right of the injured persons to sue the province. The lawyers for Ontario will argue that the Province can not be held responsible for the negligence of public health officials in failing to respond to the 2002 WNV outbreak, or for the unlawful cancellation of “special needs agreements” in the SKO case.

Both cases will be argued by a legal team from the Toronto firm of Roy Elliott, Kim, O’Connor LLP.  Won Kim will argue the appeal in the SKO case, and Douglas Elliott will present the case for the WNV group.  

The outcome of these two cases may be precedent setting. In the context of WNV, public health failures ending in tragedy like Walkerton make it important that injured persons be permitted to sue for redress. In the context of SKO, some parents were forced to surrender custody of their disabled children in order to get needed services after government officials refused to continue to provide a safety net mandated by statute.  

Both cases involve vulnerable populations, human suffering and even death alleged to have resulted from government actions. These cases have been ongoing for several years. They have involved repeated appeals and ensuing delays.  

Special Kids Ontario

The SKO case was launched in May of 2001. The Representative plaintiff is Huntsville resident, Anne Larcade. Her son Alexandre has multiple disabilities, and was systematically denied a wide range of services and benefits. Ms Larcade was told the only way she could obtain necessary services was to give up custody of her son to Children’s Aid. Thousands of other disabled children in the period beginning in 1997 suffered the same fate.  

The Ontario Child and Family Services Act imposes an obligation on the Province to promote the best interests and well being of children and families in Ontario. The Act provides for “Special needs Agreements” as a safety net for profoundly disabled children whose needs cannot be met through the normal range of community services. Although the law was not changed, in 1997 a decision was made by the government of the day to terminate “Special Needs Agreements.” It became a common practice for families to relinquish custody of their child in order to access necessary services and care.

The Special Kids Ontario Class Action was Certified as such, by a Divisional Court of Ontario decision on May 13, 2005. This was a unanimous ruling stating that the families would be allowed to sue. The plight of these families was also the subject of a scathing report by the Ontario Ombudsman Andre Marin.

West Nile Virus

Ontario government lawyers will attempt to overturn a unanimous May 3, 2005 ruling by Justices Matlow, Jennings and Reilly of the Divisional Court. The ruling stated that the province could be held responsible for injury as a result of negligence by public health officials. This decision allowed affected families to proceed with lawsuits against the province alleging negligence in dealing with the deadly 2002 West Nile Virus (WNV) epidemic. Legal actions on behalf of the WNV victims began in June 2003, but have been stalled in the court system as a result of government efforts to have the cases shut down without any trial.

Over 70% of the 150 WNV (2002) victims discharged from hospital are permanently disabled and require ongoing care.

The May 2005 decision was made after an appeal by provincial lawyers to overturn Superior Court Judge Justice Gertrude Speigel’s July 2004 ruling. The initial ruling had allowed more than 40 families (concentrated in Toronto, Mississauga, Hamilton, Windsor, Woodbridge, Caledon, Guelph, and Oshawa) to proceed with a “group action” of lawsuits.

According to the lawsuit, it was well known by 2002 that WNV would affect Ontario. The Ontario government had established a plan to protect Ontario’s citizens from the threat of the deadly disease, but then failed to ensure the plan was carried out. One of the central allegations is that the province failed to ensure an adequate testing capacity was available in Ontario to provide timely test results for WNV in animals and humans, resulting in inadequate surveillance and public education.

In 2002, many people waited weeks and even months for test results. Instead of beefing up provincial laboratory capacity to deal with the threat of WNV, Ontario laid off scientific staff, including the scientists assigned to WNV. This ensured that the province was not in any way ready to deal with the surge in demand for test results when the epidemic reached this province.

Justice Speigel noted in the original July 2004 decision that the government had laid out a plan for dealing with the WNV epidemic in 2001. The Court said, “The government had the statutory power to make policy and operational decisions regarding WNV; it chose to do so and set out a very detailed operating manual on how to proceed at the operational level. Once the defendant did decide to take action, it had duty of care to act without negligence.”

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For more information or to schedule interviews, contact:

Brent Kulba, Environmental Communication Options (ECO) 416-972-7401

Additional detail can be found at: www.reko.ca/html/specialkids.html & www.reko.ca/html/westnile.html