Health Law, Ethics & Policy Workshop
presents
Speaker: Lorian Hardcastle
University of Toronto Faculty of Law
Commentator: Joan Gilmour
York University Osgoode Hall Law School
The Role of Tort Liability in Improving Governmental Accountability in the
Health Sector
Thursday, February 27, 2014
12:30 - 2:00
Solarium (room FA2) - Falconer Hall
84 Queen's Park
Over the past decade, concerns with the accessibility and quality of health services have led several individuals to bring tort claims against provincial governments. Unlike other types of health sector legal cases, which have been the subject of much commentary, this paper provides the first treatment of the tort cases against governmental defendants. To date, Canadian courts have not been receptive to these claims, striking nearly all of them on pre-trial motions, on the basis that government defendants did not owe the plaintiffs a duty of care.
In order to situate the health sector tort claims within the judiciary’s broader approach to governmental liability, I compiled a dataset of all tort cases against Canadian governmental defendants from the past decade. My dataset indicates that judges have dismissed more health sector tort claims than those arising from most other sectors of government activity, even accounting for other explanatory variables. I also develop a framework to categorize the judicial approaches to the test for establishing a duty of care. Canadian judges now generally conduct a comprehensive analysis of the closeness and directness of the parties’ relationship and the policy implications of tort liability in determining whether a defendant owes a plaintiff a duty of care. However, judges adjudicating health sector claims fail to appreciate the government’s modern role in the health sector and are almost singularly concerned with the policy implications of their decisions.
I conclude with two policy recommendations. First, I argue that judges should more frequently permit these claims to proceed beyond the pre-trial dismissal stage to a full trial, in order to evaluate the policy concerns both for and against governmental liability with the benefit of a full evidentiary record. Second, I argue that judges should more frequently permit health sector tort claims to proceed beyond the duty of care stage of the negligence analysis to an assessment of whether the government met the standard of care. While this approach would allow judges to scrutinize the reasonableness of the government’s decisions, improving transparency and potentially motivating an improved decision-making process, it would not necessarily lead to widespread liability.
A light lunch will be provided.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca.
