In Perron v. Canada, 2025 FC 356, released on Feb. 24, Associate Judge Trent Horne found that alleged breaches of statutory duties and violations of Charter rights were bound to fail, citing a lack of legal duty owed to individuals and the non-justiciability of broad policy decisions.
“The Court does not have the institutional capacity to decide whether swaths of Canada’s overall pandemic response strategy was the best strategy, nor is it a legitimate matter for the Court to decide,” the judge wrote.
The proposed class action was brought on behalf of residents of Canada who were infected with COVID-19 from Jan. 27, 2020, to Nov. 17, 2021, and who either died, were hospitalized and ventilated, or hospitalized and treated with oxygen.
The plaintiffs asserted that the federal government has a duty to protect the health of Canadians pursuant to the Canada Health Act (CHA), the Department of Health Act (DHA), the Public Health Agency of Canada Act, and the Quarantine Act.
They alleged that the federal government infringed class members’ rights under s. 7 of the Canadian Charter of Rights and Freedoms by breaching its duties under the relevant health-care legislation.
The plaintiffs alleged that the federal government failed to discharge its statutory duty by, among other things, failing to follow its own pandemic plan and in failing to maintain Canada’s supply of personal protective equipment.
They also alleged that the federal government’s failure to impose mandatory contact tracing and quarantining for all travelers entering Canada until Nov. 17, 2020, increased the risk to plaintiffs and caused them to contract COVID-19.
The plaintiffs relied on s. 3 of the CHA, which states that the primary objective of Canadian health-care policy is to protect, promote and restore the physical and mental well-being of residents of Canada.
Associate Judge Horne held that the statement of objective did not create a duty between the government and members of the public, including the plaintiffs, to protect them from diseases including COVID-19.
The court also rejected the plaintiffs’ assertion that s. 7(1.1) of the Public Health Agency of Canada Act, which requires the chief public health officer to provide public health advice to the health minister that is developed on a scientific basis, also created such a duty.
The judge similarly rejected arguments that the Quarantine Act imposed positive obligations on the federal government to protect public health by taking comprehensive measures to prevent the introduction and spread of communicable diseases.
“Without a duty, there can be no breach, and no consequent Charter remedy,” the judge wrote.
With respect to the duties of the health minister set out in the Department of Health Act, the judge held that the statute only established general duties to the public, and not a private law duty of care to particular individuals.
“The law has not recognized an action for negligent breach of statutory duty. It is well established that breach of a statutory duty does not constitute negligence,” the judge wrote.
The court held that a Charter remedy was not available to the plaintiffs for alleged breach of the duty described in the DHA.
The judge noted that the claim was “essentially a negligence action, styled as a Charter claim.”
“It alleges a duty of care imposed by statute, breach of that duty of care, and damages. Since a breach of a statutory duty cannot constitute negligence, this cannot be cured by amendment,” the judge wrote.
Associate Judge Horne also held that the claim was not justiciable, noting that it did not articulate a legally defined objective standard and could not be amended to do so.
“I agree with the defendant that there is no judicially manageable standard for assessing whether the federal COVID-19 strategy struck the right balance between medical, economic and social priorities,” the judge wrote.
The court observed that two reports of the federal auditor general and a separate review of the Global Public Health Intelligence Network by the minister of health cited by the plaintiffs did not establish legally defined, objective standards against which the Charter claims could be assessed.
The court struck the claim without leave to amend.
Counsel for the parties were not immediately available for comment.
Counsel for the plaintiffs were Melvyn Solmon and Nancy Tourgis of Solmon Rothbart Tourgis Slodovnick LLP.
Counsel for Canada were Victor Paolone, Matthew Sullivan and James Stuckey of Justice Canada.
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