What is the duty of care and standard of care of public authorities in health care?

Public authorities are different from private parties in so many ways. Among other things, they carry out mandatory obligations imposed by statutes, invariably advantaging some while disadvantaging others. As for the duty of care, does it make sense to speak of public authorities having to consider their “neighbours”– the animating principle of Donoghue v. Stevenson – when they regularly affect thousands, tens of thousands or even millions at a time? As for the standard of care, how can one discern an “industry practice” that would inform a standard of care given public authorities’ wide variation in mandates, resources and circumstances? Even if these questions are satisfactorily answered, others remain. For example, the defence of consent – a defence that keeps the liability of many private parties in check – is often impractical or impossible for public authorities. And, unlike private parties, many other less drastic tools exist to redress public authorities’ misbehaviour, including certiorari and mandamus.

As well, the current law of liability for public authorities – the provenance and essence of which is private law – sits as an anomaly within the common law. By and large, our common law recognizes the differences between private and public spheres and applies different rules to them. Private matters are governed by private law and are addressed by private law remedies; public matters are governed by public law and are addressed by public law remedies. This has become a fundamental organizing principle: Dunsmuir, above; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504; Air Canada v. Toronto Port Authority, 2011 FCA 347; [2013] 3 F.C. 605.