Duty of care owed by breast implant manufacturers and distributors, not by the government

Attis v. Canada (Health), 2007 CanLII 15231 (Ont. S.C.J.)

In a ruling released on May 3, 2007, Mr. Justice Winkler (now Chief Justice Winkler) held that, in the absence of a duty of care, there can be no claim against the Government of Canada for a failure to regulate. As described in his reasons for judgment, the proposed class action was 'one of the final chapters in the protracted, multi-country breast implant litigation'. The plaintiffs, who developed complications from implants they had received, alleged that the federal government had failed or refused to regulate properly the use of the implants by Dow Corning and its subsidiaries in Canada. The plaintiffs were also members of the class which sued Dow Corning, an action that settled in 1998.

The government moved to strike the claim on the grounds that it disclosed no triable cause of action. The plaintiffs were unable to show that there was any statutory provision specifically imposing a private law duty of care on the government in respect of screening and approving medical devices, or a duty to warn consumers. While the various health statutes and regulations cited by the plaintiffs establish a general regulatory scheme for the public benefit, they do not give rise to the proximity required for the existence of a duty of care on the part of the government itself. Under the legislative scheme, the duty of care rests squarely with manufacturers and distributors. There were no grounds to extend to the government, by implication, the specific obligations imposed on manufacturers and distributors of medical devices.

In the absence of a duty of care that could be breached, the plaintiffs could not advance a claim of failure to govern, which Winkler J. found is not justiciable. On this point, Winkler J. rejected the contention that the legislative scheme was 'operational' in nature as it applied to the government; the Crown's responsibility was clearly at the level of policy-making only, and thus immune from private suit on the principle that government action of this kind is directed at the public collectively and not individually.

Although it was not strictly necessary for Winkler J. to deal with the other grounds advanced by the plaintiffs for certification, he did so - presumably for the purposes of the (probably inevitable) appeal. There was, in his view, an identifiable class that was not unnecessarily broad and was sufficiently capable of definition, even if it was defined on the basis of whether or not a person actually made a claim for redress. The claim also raised common issues (although not all of the issues proposed by the plaintiffs were accepted) and a class proceeding would be the preferable procedure for their resolution, notwithstanding that there were complex issues and individual issues of causation. Access to justice, efficiency and management advantages militated in favour of certification. Winkler J. was not so favourably inclined towards the proposed litigation plan, which adopted a claims administration model more suitable to settlement agreements where causation was not an issue. The adequacy of the proposed representative plaintiffs was accepted.