Representing victims of medical malpractice across Ontario

McKee v. Shahid – Court of Appeal Leaves Open Potential Duty of Care to Non-Patient in Psychiatric Negligence Case Involving Homicide of Family Member

Picture of Paul Cahill

Paul Cahill

Paul is a partner at Davidson Cahill Morrison LLP. He has proven himself a fearless advocate by a number of successful trial outcomes over the years, including a $11.5 million judgment for medical malpractice causing cerebral palsy against a negligent doctor as well as a judgment against a negligent emergency room physician who caused the death of a 34 year-old mother of 4 young children.
Exterior of Osgoode Hall

On February 11, 2019, Bradley McKee stabbed his father, William McKee, to death. At the time of the stabbing, Bradley was 27 years old; he had a long history of serious addiction and mental health issues.

The claim alleged that the respondents were negligent in treating Bradley and that they were negligent in failing to warn Ms. McKee and William that Bradley posed a danger to them.

The claim specifically alleged that the respondents breached the standard of care through a series of acts and omissions, including that “[t]hey discharged Bradley from long-term psychiatric care when it was contraindicated”, “[t]hey failed to adequately assess the risk posed by Bradley or warn of that risk”, “[t]hey failed to exercise reasonable care to warn and protect third parties regarding the risk posed by Bradley”, and “[t]hey failed to use all due care and skill throughout their treatment of Bradley”.
 
The motion judge granted the respondents’ motion to strike the claim. He found that the claim for negligence in treating Bradley did not disclose a reasonable cause of action because the duty of care the respondents allegedly owed to Bradley’s parents would conflict with the duty of care owed to Bradley. The motion judge did not give leave to amend this claim. He also found that the claim for failure to warn did not plead sufficient material facts and struck that claim with leave to amend.
 
Ms. McKee appealed the motion judge’s order striking her claim based on negligence in treating Bradley without leave to amend. She argued that the motion judge erred in finding that this was not an established duty of care. Alternatively, Ms. McKee submits that the motion judge erred in his Anns/Cooper analysis, particularly in finding there to be a conflict between the duty of care the respondents owed to Bradley and the proposed duty they owed to his parents.

In this case, the motion judge stated that a duty of care owed to Bradley’s parents would place the respondents in an impossible conflict of interest. In the Court of Appeal’s view, this was a speculative conclusion, particularly in the context of a motion to strike.

Ms. McKee’s claim was not premised on the assertion that the respondents should have made treatment decisions for Bradley with a view to preventing harm to her and William. Rather, the claim asserted that the respondents fell below the standard of care in treating Bradley and that his parents were harmed as a result of this breach of the standard of care. On the basis of the facts pleaded in the statement of claim, Bradley and his parents did not have conflicting interests; they had the same interest. That is, all three had an interest in Bradley receiving appropriate treatment, which might have prevented him from killing his father.
 
Accordingly, the Court of Appeal disagreed with the motion judge that Ms. McKee’s claim in negligence based on the respondents’ treatment of Bradley was doomed to fail. While the Court of Appeal agreed that this proposed duty of care was not within an established category of duty of care, the issue of a conflict between the duty owed to Bradley and a potential duty owed to his parents should be decided on a proper evidentiary record, rather than on a motion to strike.
 
As such, the appeal was allowed.

Decision Date: September 25, 2025

Jurisdiction: Court of Appeal for Ontario

Citation: McKee v. Shahid, 2025 ONCA 666

Join Newsletter

Recent Posts