Judgment Released: January 21, 2011 Link to Judgment
A five-justice panel of the Court of Appeal dismissed an appeal of one of the first reported decisions applying the new Rule 20 (summarized on this blog here).
The action arose following a TB outbreak at the defendant hospital. The hospital informed Durham Public Health, who issued notices to persons who had recently visited the hospital advising them to be tested for TB. Among other claims, a class of persons who had received the notices but ultimately tested negative for TB claimed for mental distress as a result of receiving the notices. The motions judge dismissed the claim on summary judgment. The hospital did not owe the class members a duty of care, nor did their injuries meet the threshold of a recognizable psychiatric illness, and any injury would be too remote. The Court of Appeal held that there was a duty of care but agreed with the motion judge on the threshold for damages and the remoteness issue.
While the motion judge’s application of the new Rule 20 was raised as a ground of appeal, the Court of Appeal held that “given the nature of the issues, the extensive evidentiary record provided the motion judge with a sufficient basis to decide that there was no genuine issue for trial. In these circumstances, it is unnecessary to consider the effect of the recent amendments to Rule 20. I leave that question to another day without commenting on the motion judge’s analysis of those amendments.”