“Public authorities with powers . . . under safety statutes have, in the past been found to owe duties to the individuals the legislation was designed to protect.”

Superior Court of Ontario, Abarquez v. Ontario, [2005] O.J. No. 3504, Aug. 22, 2005.

A new poll shows that only 42% of Americans approve of the Obama Administration’s response to the oil spill in the Gulf Coast. The situation is starting to remind me of a question I first explored 5 years ago when another disaster struck that same part of the world: Should victims of a disaster be allowed to sue the government agency that was supposed to protect them?

Emergency Response & the Public Sector

As safety professionals, you have a keen appreciation of the significance of emergency response. Such situations make and break corporate reputations. For governments, the stakes are even higher. In retrospect, slow and ineffective response to Hurricane Katrina proved the political turning point for the Bush Administration.

Of course, the question of government accountability for emergency response is one that pertains equally on this side of the border.

Interestingly enough, on August 22, 2005, one week to the day before Katrina slammed into the Gulf Coast, a court in Ontario addressed this very question. The case wasn’t about a hurricane but the 2003 outbreak of SARS and the government’s alleged failure to protect the victims. Different crisis, same principles.

Canada & SARS

Fifty-three nurses who contracted SARS while working at Ontario hospitals during the 2003 outbreak sued the Crown for not doing enough to protect them. The nurses claim that they wouldn’t have gotten sick if the Crown and the Ontario Ministry of Labour (MOL) had properly enforced the Occupational Health and Safety Act.

The Crown denied responsibility and asked the court to throw out the case. But the court ruled that the nurses had a valid claim. It ordered a trial to be held so the nurses could prove their case in court.

The court cited 2 reasons:

1. The Crown Could Be Held Liable as the Nurses’ Supervisor

Ontario OHS laws impose duties on “employers” and “supervisors.” The Crown clearly wasn’t the nurses’ employer; the hospitals were. But the court said that the Crown or, more precisely, officials from the national Ministry of Health and Long Term Care (MOHLTC) who responded to the SARS crisis, might be considered “supervisors” under the OHS Act.

That’s because during the SARS outbreak, MOHLTC officials issued a Directive telling hospitals how to protect nurses and other staff members attending to SARS patients. The nurses claimed these instructions were inadequate. A trial would have to decide if this was true and if the issuance of detailed instructions was tantamount to the exercise of supervisory authority.

2. The Crown Must Answer for the MOL’s Failures

The nurses also claimed that the MOL did a lousy job of enforcing the OHS law during the SARS crisis. Among other things, the MOL should have responded to safety complaints by hospital workers during the crisis rather than step aside and let the MOHLTC handle them.

The Crown claimed that it couldn’t be held responsible for the failures of the Ontario MOL. But the court disagreed. If the nurses could prove their charges at a trial, the Crown would have to pay damages.

Conclusion

The debate over sovereign immunity is as old as the Charter itself. Detractors argue that it reduces the accountability of government; defenders say that it’s essential to governance because public officials need to be able to do their jobs without worrying about getting sued.