Fridays with Rogers Partners
At our weekly meeting, Miranda Lacalamita discussed the recent decision of the Ontario Superior Court of Justice in McKee v. Shahid, 2024 ONSC 4258, granting the defendant’s motion to strike the plaintiff’s pleadings in its entirety, but allowing the plaintiff to amend the claim to plead one cause of action.
Facts
The case involved a tragic incident where Bradley Mckee, a man with a long history of mental health issues, fatally stabbed his father, William McKee, during a psychotic episode on February 11, 2019. During this time, Bradley had been under the care of two psychiatrists, Dr. Raheel Shahid and Dr. Gunter Lorberg, who are the named defendants in this action.
Bradley began exhibiting mental health issues in 2008 when he was 16 years old, leading to various diagnoses, including, anxiety, depression, substance abuse, opiate dependency, substance-induced mood disorders, suicidal thoughts, panic disorder, unspecified personality disorder, and borderline antisocial personality disorder. He also had a history of self-harm and aggressive behaviour, including assaults on a police officer and both of his parents.
Bradley was treated by Dr. Lorberg at Central North Correctional Centre and Ontario Addiction Treatment Centres, and by Dr. Shahid at Waypoint Centre for Mental Health Care. Despite Bradley’s deteriorating mental health and his parents’ written plea that he be admitted for long-term care, he was repeatedly discharged from psychiatric care and sent back to live with his parents, until the events of February 11, 2019.
The plaintiff in this action is Anna McKee, who is the mother of Bradley and the widow of William. She claims that she suffered damage as a result of the negligence of the two defendants. She pleads that they each owed both her and her deceased husband a duty of care to (1) provide competent medical care to Bradley, and (2) warn them of the significant risk that Bradley posed to their safety.
In response, the defendants moved to strike the plaintiff’s claim in its entirety under Rule 21.01(1)(b), or alternatively, under Rule 25.11 of the Rules of Civil Procedure, on the basis that Canadian tort law does not recognize either of these alleged duties of care. Additionally, they argue that even if there is a chance that the duties might be recognized, the Statement of Claim lacks sufficient factual detail to support it and should be struck.
The Law on Motions to Strike
Rule 21.01(1)(b) provides that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. In other words, whether a pleading should be struck depends on whether it is plain and obvious that it has no reasonable prospect of success.
No evidence is admissible on a Rule 21.01(1)(b) motion. Rather, the motions judge is to assume that all of the allegations set out in the claim are true, and determine, on the basis of those allegations, if it is plain and obvious that the claim cannot succeed.
Issues
- Is it plain and obvious that the defendants did not owe a duty of care to the plaintiff or her husband to avoid causing harm to them through the negligent care of their son?
- Is it plain and obvious that the defendants did not owe a duty of care to warn the plaintiff or her husband on the danger that Bradley posed to them?
- If it is not plain and obvious that the plaintiff’s claim cannot succeed, has it been properly pleaded?
Analysis
Issue 1: It is plain and obvious that the defendants did not owe a duty of care to the plaintiff or her husband to avoid causing harm to them through the negligent care of their son
To answer this question, the court began by noting that it is settled law that physicians owe a duty of care to patients and must conduct themselves as a prudent and diligent doctor would in the circumstances.[1] However, the plaintiff in this case is not a patient of the defendant doctors.
Therefore, the first step when a duty of care is alleged is to determine if it fits within an established category of relationship that has already been recognized in the jurisprudence as giving rise to a duty of care.[2]
The court reviewed several cases and concluded that the duty of care that is asserted by the plaintiff has not been recognized in the jurisprudence and is a novel claim. In fact, the court noted that Canadian tort law has generally held against recognizing a duty of care owed by doctors to non-patient third parties, since such a duty could potentially conflict with the duty owed by a physician to a patient.[3]
Since the court determined that the duty of care asserted by the plaintiff has not been recognized in the jurisprudence, the next step is to apply the Anns/Cooper test to determine whether the novel duty of care ought to be recognized.[4]
The Anns/Cooper test involves two stages: (1) determining whether there is a prima facie duty of care based on the factors of reasonable foreseeability and proximity, and (2) whether there are public policy reasons for not imposing the duty.
The court held that this claim fails at the proximity stage of the Anns/Cooper analysis, which asks whether the parties are in such a close and direct relationship that it would be “just and fair having regard to that relationship to impose a duty of care in law”.[5] Courts are directed to consider policy issues in the context of the proximity analysis.[6]
The claim fails at the proximity stage for several reasons. First, if the duty to Bradley’s parents were recognized, it could place the defendants in a conflict of interest between their patient Bradley, and his mom, the plaintiff. Additionally, there is a possibility that the duty would create an intrusion on Bradley’s privacy interests.
The court also noted that recognizing the duty could have a chilling effect on physicians, making them hesitant to take on high-risk patients out of fear of claims by third party non-patients. Finally, the court noted that patients with mental illnesses may be dissuaded from seeking out psychiatric care if they know their psychiatrist is going to be making decisions about their treatment with regard to how those decisions may impact third parties.
Therefore, the court held that it was clear the defendants did not owe the plaintiff a duty of care regarding the sufficiency of the defendants’ treatment of Bradley – this claim was struck.
Issue 2: It is not plain and obvious that the defendants did not owe a duty of care to warn the plaintiff or her husband of the danger that Bradley posed to them
The court found that the alleged duty to warn did not fall within a recognized category, so it applied the Anns/Cooper test.
Similar to the court’s analysis of the first alleged duty, the court found that the claim would have the most trouble at the proximity stage, given the public policy concerns mentioned above. However, the court found that some of these concerns are attenuated by the Smith v. Jones decision, which held that a public safety exception applies to all classifications of privileges and duties of confidentiality when 3 pre-requisites are met: (1) there is a risk to an identified person or group of persons, (2) there is a risk of serious bodily harm or heath, and (3) the danger is imminent.[7]
The court found that this decision might support the conclusion that the defendants would have been justified in releasing confidential information about Bradley’s condition to his parents; however, it was not enough to prove that the defendants were required by a duty to warn the plaintiffs. Nonetheless, this fact was enough to convince the court that it is not plain and obvious that the claim for a duty to warn the plaintiffs cannot succeed.
Issue 3: The Plaintiff’s claim was not properly pleaded and is struck in its entirety
Rule 25.06(1) states that every pleading is to contain a concise statement of the material facts on which the party relies, but not the evidence by which those facts are to be proved. Where that minimum level of fact disclosure has not been reached, the pleading is irregular and should be struck.
Having regard to the Smith decision, the court found that the plaintiff’s claim regarding the duty to warn was not properly pleaded. It held that it is necessary for a claim based on a duty to warn to set out sufficient facts to support each of the three pre-requisites of a public safety exception. Since the plaintiff failed to do so, the claim was struck.
Conclusion
The court struck out the plaintiff’s claim in its entirety, but with leave to amend the claim to properly plead the duty to warn assertions.
This case reinforces that the primary duty of care for healthcare professionals is to their patients, not to non-patient third parties who may be affected by their decisions. That being said, the case leaves the door open for a duty to warn third parties to be recognized in the future, especially where there is a significant risk of harm.
[1] ter Neuzen v. Korn, 1995 CanLII 72 at para 33 (SCC).
[2] Paxton v. Ramhi, 2008 ONCA 697 at para 30 [Paxton].
[3] Syl Alps Secure Treatment Centre v. B.D., 2007 SCC 38 [Syl Apps]; Paxton; Wawrzyniak v. Livingstone, 2019 ONSC 4900.
[4] Anns v. Merton London Borough Council, [1997] UKHL 4; Cooper v. Hobart, 2001 SCC 79; Childs v. Desormeaux, 2006 SCC 18.
[5] Deloitte & Touche v. Livent Inc., 2017 SCC 63 at para 25.
[6] Syl Apps at para 32.
[7] 1999 CanLII 674 (SCC) at para 44.