The Ontario Court of Appeal has unanimously restored a lawsuit alleging that the Ontario air ambulance service's negligence was responsible for a Shelburne teenager's death following a tobogganing accident at Mansfield Skiways.

In a decision released Tuesday, three judges of the court agreed that Patrick Heaslip's family can pursue the civil action, which also names the Mansfield Ski Club , Alliston's Stevenson Memorial Hospital, Simcoe county's paramedic services and several individuals as defendants.

In overturning the December 2008 ruling of Superior Court Justice Guy DiTomaso, the court concluded that it was at least arguable that in the circumstances Ontario owed a duty of care to the plaintiffs.

At a hearing on June 19, appellants' counsel Adam Little of Barrie's Oatley Vigmond law firm argued that the air ambulance service failed to prioritize Patrick's medical needs and send or divert an air ambulance to take him to St. Michael's Hospital in Toronto for treatment of his lifethreatening injuries.

Specifically, the Heaslips allege that:

• Ontario knew that Patrick had suffered a life-threatening injury;

• A nearby air ambulance that could have taken him to an appropriate hospital was carrying another patient with nonlife threatening injuries;

• Ontario had adopted a policy for air ambulances that gave priority to those with life-threatening injuries, even if that meant diverting another patient; and

• Ontario negligently failed to follow that policy in relation to Patrick.

The lethal accident occurred on Feb. 4, 2005, when Patrick, 17, hit a steel snow gun and then a tree, leaving him with a punctured lung and crushed chest.

At Stevenson Memorial, a doctor called for an air ambulance to take him to St. Michael's but cancelled the request when a dispatcher said it would be two hours before it could get there. Instead, he was taken by land ambulance and was pronounced dead on arrival at Newmarket's Southlake Regional Health Centre.

Mr. Little told the Toronto Star that while the days of "government immunity" weren't necessarily over, the ruling shows there are limits on the extent to which governments will be shielded from liability when their conduct is alleged to have harmed citizens.

Writing for the appeal court, Justice Robert Sharpe concluded that the lower-court judge had applied an unduly narrow interpretation of the test for quashing statements of claim as having no chance of success, "especially in relation to a motion to dismiss the action at the pleading stage.

"While I agree that certain allegations contained in the claim assert purely public law duties and must be struck, the core of the claim advanced by the appellants is centred on a very specific set of facts that are alleged to have arisen when Ontario was asked to provide an air ambulance to carry Patrick Heaslip to a hospital capable of treating his injuries."

Justice Sharpe distinguished the facts alleged from those in cases cited by the Province, noting that in those cases, the plaintiffs "suffered harm at the hands of a party involved in an activity subject to regulatory authority, and then alleged negligence on the part of the governmental authority charged with the duty of regulating the activity that gave rise to the plaintiff's loss."

Instead, the Heaslips' negligence claim "does not rest solely upon a statute conferring regulatory powers ... but is focused instead on the specific interaction that took place between Patrick Heaslip and Ontario when the request for an air ambulance was made. In this case, the relationship between Patrick Heaslip and the governmental authority is direct, rather than being mediated by a party subject to the regulatory control of the governmental authority.

"The appellants allege acts of negligence in responding to a specific request for urgently required medical services and the negligent failure to comply with an established government policy, both of which are alleged to have caused harm to Patrick Heaslip. I agree with the appellants that the alleged facts in this case support the existence of a duty of care ... ."

He noted that in Attis v. Canada (Minister of Health) his court observed last year that "once the government has direct communication or interaction with the individual in the operation or implementation of a policy, a duty of care may arise, particularly where the safety of the individ- ual is at risk."

"It follows, in my view, that the motion judge erred by concluding that this case did not fall within an established category of negligence."

Justices David Watt and Gloria Epstein concurred.

Among the plaintiffs' claims is an assertion that the Medical Air Transport Centre (MATC) Manual of Operational Policy and Procedure provides for the reassignment of an air ambulance from an existing assignment to deal with a higher priority patient, "regardless of the stage of the existing assignment."

The plaintiffs say the MATC knew that Patrick's life-threatening medical condition had a higher priority response than the patient on board the air ambulance near Stevenson Memorial, but failed to reassign the air ambulance, thus failing to comply with their own manual of Operational Policy and Procedure.

The claim also alleges that neither of Ontario's other two on-duty air ambulances were available. One was grounded because the pilot had reached the limit of his duty hours and the other was unavailable because it required maintenance