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Court blocks suit against province by victims of West Nile Virus

Friday, November 3rd 2006 10:50:17am

(Toronto, Ontario, November 3rd, 2006)  The Ontario Court of Appeal issued a ruling today overturning lower court rulings (opposed by the province) that gave the green light to a group of lawsuits to proceed against the province.  The lawsuits were brought by over 40 families and victims of the 2002 West Nile Virus (WNV) outbreak, alleging that Ontario’s public health officials failed to take reasonable steps to curtail the outbreak and warn persons in areas of elevated risk of outbreak.  The appeal had been argued September 11, 2006 at Osgoode Hall before Justices Sharpe, Armstrong and McFarland of the Court of Appeal for Ontario.

“I am distressed that we may never have our day in court,” said Pat Anweiler, a Toronto nurse who will be confined to a wheelchair for the rest of her life as a result of West Nile Virus infection.  “People need to remember that back in 2002, the government was not telling us how serious a threat West Nile Virus was and what we needed to do to protect ourselves. Had I known back than that I was in danger, I could have protected myself.”  

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 provide an adequate testing capacity in Ontario to deliver timely test results for WNV in animals and humans.  This resulted 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.  The province was not ready to deal with the surge in demand for test results when the epidemic reached Ontario, 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 West Nile Virus (2002) victims discharged from hospital are permanently disabled and require ongoing care.  A number of people died.

“This case was not only important to the affected families, but it was also important to all Ontarians. If this ruling is allowed to stand, it may mean that ordinary people can never hold public health officials accountable in a court of law when their careless mistakes hurt and even kill people,” said Douglas Elliott, of Roy Elliott Kim O’Connor LLP, the lead counsel for the families.

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, Kitchener-Waterloo and the Niagara Peninsula) 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 which overturned 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.  The plaintiffs have 60 days to seek leave to appeal the ruling to the Supreme Court of Canada.

“We will be studying the ruling carefully and seeking instructions about an appeal from the families,” said Elliott.  “Clearly, we thought the first four judges who looked at the case and all thought it should proceed had it right.  Unfortunately, the higher Court saw it differently. ”


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