Taylor v. Canada (Minister of Health)

September 5, 2007

The plaintiff was implanted with a defective jaw implant, resulting in severe health complications and loss of enjoyment of life. The U.S. manufacturer of the jaw implants went bankrupt. The plaintiff brought an action against Health Canada, alleging that Health Canada was negligent in allowing the defective implants to be used in Canadian hospitals when it knew that the implants were defective and would fail if used on Canadian patients. She sought to represent a group of 2000 similarly situated people who were also implanted with the same defective implants. Canada resisted the action on a number of grounds, arguing that it had no duty to inform the plaintiff of what it knew about the defective implants.

The Ontario Superior Court of Justice certified the action as a class proceeding. The Court held that where government officials and staff do not duly exercise their discretion, and create, enhance or contribute to a risk of harm to a discrete group of individuals, a duty of care may be owed to those individuals and damages may be awarded for breach of that duty. The Court also held that Health Canada’s alleged failure to enforce its own regulations when it was aware that sales of the defective jaw implants were continuing over a period of six or seven years could only have encouraged the U.S. importer/distributor to believe it could ignore its statutory obligations, and Health Canada, with complete impunity. In certifying the action, the Court stated that allowing the action to proceed would assist in ensuring that governmental bodies, their office officials and employees comply with their public responsibilities. Health Canada tried to appeal the decision, but their request was denied.

Mr. Baert represented the plaintiffs at both levels of court. The action will likely be tried sometime in 2010.

Taylor v. Canada (Health), 2007 CanLII 36645 (ON S.C.)

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