4 novembre, 2006 20:14

Ont. can't be sued by West Nile victims, court rules

Last Updated: Friday, November 3, 2006 | 11:43 AM ET

CBC News

Ontario residents who got ill from the West Nile virus in 2002 cannot sue provincial health officials for negligence, the Ontario Court of Appeal said Friday.

The province's highest court threw out a lawsuit, saying the government could not have been expected to prevent an individual from contracting the disease.

Pat Anweiler said if she knew of the dangers of West Nile in 2002, she would have protected herself.

"It is plain and obvious on the facts that have been pleaded that Ontario does not owe a private law duty of care to individuals to prevent the spread of (West Nile virus)," the Appeal Court said.

"The statement of claim should be struck."

In 2003, Ontario began large public health campaigns warning about the threat of West Nile from mosquitoes. Lawyer Doug Elliott said that was too late, and neighbouring New York State had been more vigilant.

Elliott sued the Ontario government on behalf of 40 victims and families who allegedly got sick after being bitten by mosquitoes in the summer of 2002.

The suit alleged the province should have prevented the West Nile outbreak that season and that the province failed to warn people about the higher risk.

"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," said Pat Anweiler, a Toronto nurse who uses a wheelchair after an infection.

"Had I known back then that I was in danger, I could have protected myself."

Two lower courts allowed him to proceed with the lawsuits. In a unanimous decision on Friday, three judges said public officials should be left to decide where to focus their attention without the threat of lawsuits.

Victims can't sue for carelessness: lawyer

"The Court of Appeal of Ontario has essentially said that if there's a future Walkerton, then the victims of carelessness of public health officials are going to have to live with the consequences of that negligence," Elliott said, referring to the seven people who died after a tainted water outbreak in southwestern Ontario.

"They will not be allowed to sue public health officials for carelessness," he told CBC News.

The decision is also a setback for people who are suing the Ontario government after they were infected with SARS in 2002 during the second wave of cases, which happened after public health officials relaxed their vigilance.

In the West Nile case, the province argued to strike the statement of claim on the grounds it was baseless, saying it owned no "duty of care" to individuals to prevent the spread of infectious diseases.

The provinces also argued that the failure to implement prevention measures rested with local boards of health.

The plaintiffs said they are considering whether to ask the Supreme Court of Canada to review the decision. They have 60 days to do so.