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WEST NILE VIRUS: Plaintiffs to Seek Leave to Appeal Dismissal of Suit Against Province

Tuesday, December 12th 2006 12:41:15pm

(Toronto, ON, December 12, 2006) The Plaintiffs in a group action brought by over 40 families against the Province for negligence with respect to the 2002 West Nile Virus (WNV) outbreak announced today that they will be seeking leave to appeal a recent dismissal of their cases to the Supreme Court of Canada.

On November 3, 2006, the Ontario Court of Appeal released a unanimous decision dismissing the plaintiffs’ claims. The Court of Appeal’s decision overturned two lower court decisions that upheld the plaintiffs’ ability to sue the Province for their operational failures in the implementation of the 2002 West Nile Virus Surveillance and Prevention Plan. The lawsuits allege that Ontario’s public health officials failed to take reasonable steps to curtail the outbreak, and failed to warn persons in areas of elevated risk of the outbreak.

“My life was turned upside down by West Nile Virus,” Said Nicole Noble, a 22 year old West Nile survivor. “We just want our day in court. We want to know the truth, and we want justice.”  

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 as recommended by the CDC in Atlanta (Georgia), 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, despite clear warnings from the Center for Disease Control in Atlanta to be ready to meet the increased demand.

It is also alleged that provincial public health officials played down the threat to Ontarians in the face of skyrocketing infection rates in birds that made a human outbreak very likely.

Over 70% of the 150 WNV (2002) victims discharged from hospital are permanently disabled and require ongoing care. A number of persons died, including one woman who contracted West Nile from a blood transfusion.

The Ontario Court of Appeal overturned two lower court decisions and allowed the Province’s motion to strike the claim, finding that the Province could not owe a duty of care to the plaintiffs. Justice Sharpe, writing for a unanimous court, stated, “Public health authorities should be left to decide where to focus their attention and resources without the fear or threat of lawsuits.”

“Future victims of disasters like Walkerton will be denied their day in court if this ruling is allowed to stand, as it grants public health officials sweeping immunity,” said Douglas Elliott, of Roy Elliott Kim O’Connor LLP, the lead counsel for the families.  “This ruling puts the peace of mind of bureaucrats ahead of accountability for carelessness and incompetence.”

An initial ruling in favour of the plaintiffs’ right to sue was made by Superior Court Judge Justice Gertrude Speigel in July of 2004. The initial ruling had allowed more than 40 families (concentrated in Toronto, Quinte, Kitchener-Waterloo and Windsor/Essex) to proceed with their “group action.”

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.”

In a unanimous ruling issued on May 3, 2005, Justices Matlow, Jennings and Reilly of the Divisional Court upheld Justice Speigel’s ruling. The province pursued a further appeal to the province’s highest court that resulted in today’s ruling overturning the original ruling in favour of the plaintiffs’ right to sue.

The forty cases have been stalled as a result of this series of appeals pursed by the province.

Elliott concluded, “We should all be grateful for the courage of these families. They are all coping with the terrible burden of this disease, and are still willing to shoulder the further burden of continuing to fight for justice.”

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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. & www.reko.ca/html/westnile