Walker Estate v. York Finch General Hospital

Walker Estate v. York Finch General Hospital
Collection
Supreme Court Judgments
Date
2001-04-19
Neutral citation
2001 SCC 23
Report
[2001] 1 SCR 647
Case number
27284, 27285
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Ontario
Subjects
Torts
Notes
SCC Case Information: 27284, 27285
Decision Content
Walker Estate v. York Finch General Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23
The Canadian Red Cross Society Appellant
and
York Finch General Hospital (Defendant)
v.
Douglas Walker as Executor of the Estate of Alma
Walker, deceased, Douglas Walker, infants Scott Walker
and Danielle Walker by their Litigation Guardian
Douglas Walker, J. Bob Alderson and Velma Alderson Respondents
and between
The Canadian Red Cross Society Appellant
and
Toronto Hospital (Defendant)
v.
Lois Osborne as Executrix of the Estate of
Ronald Charles Osborne, deceased, Lois Osborne,
Paul Osborne, Karen McCraw and
David Osborne Respondents
and between
The Canadian Red Cross Society Appellant
and
Hospital for Sick Children (Defendant)
v.
A.A.M., A.M., on his own behalf and as Litigation
Guardian for D.R.M. and A.M.M. Respondents
Indexed as: Walker Estate v. York Finch General Hospital
Neutral citation: 2001 SCC 23.
File Nos.: 27284, 27285.
2000: November 7; 2001: April 19.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Negligence -- Standard of care -- Blood banks -- Plaintiffs contracting HIV from blood products supplied by Canadian Red Cross Society -- Plaintiffs claiming that Society was negligent in procedures used to screen blood donors with HIV and AIDS -- Appropriate standard of care for professional voluntary blood banks in North America -- Whether Society met proper standard of care -- Whether trial judge correct in finding that Society’s May 1984 pamphlet given to blood donors was inadequate despite evidence of two medical experts to the contrary.
Negligence -- Causation -- Proper test for causation in cases of negligent donor screening by blood banks -- Plaintiff contracting HIV from blood and blood products supplied by Canadian Red Cross Society -- Plaintiff claiming that Society was negligent in procedures used to screen blood donors with HIV and AIDS -- Trial judge concluding that infected donor would still have given blood even if Society had met proper standard of care and dismissing negligence action for failure to prove causation -- Court of Appeal imposing liability on basis of presumptive causal link -- Whether rebuttable presumption of causation appropriate standard to apply in cases of negligent blood donor screening.
The plaintiffs -- W, O and M -- contracted HIV from blood and blood products supplied by the Canadian Red Cross Society (“CRCS”). They claimed that the CRCS was negligent in the procedures used to screen blood donors with HIV and AIDS. In W’s case, the infected donor gave blood in September 1983. At the time, the CRCS’s donor-screening method was a questionnaire given to potential donors. This April 1983 questionnaire contained questions that generally pertained to the donor’s health, but made no reference to persons at high risk for contracting AIDS or to signs and symptoms of AIDS. A pamphlet published in May 1984 was the first to make reference to AIDS. In that pamphlet, the CRCS requested that homosexual or bisexual males who have multiple partners refrain from donating blood. The cases of O and M involved a single donor. The blood received by O and M was given in December 1984 and in March 1985 respectively. The donor was a long-time blood donor. He had swollen lymph nodes in his neck, but these had been present since about 1975 and, as far as he was concerned, they had no effect on his overall health and gave no cause for concern in his donating blood. Since he had not been sexually active with men since 1982, he did not regard himself as a sexually active homosexual at the time he donated blood in December 1984. It was not until November 1985 that the CRCS revised its May 1984 pamphlet to describe a typical member of the group of high-risk donors as a person who was “a male and [has] had sex with another male since 1977”. Around the same time, it also began testing all blood donations for the presence of HIV antibodies using the ELISA test. In May 1986 the CRCS introduced the first brochure that asked symptom-specific questions about HIV.
The three cases were heard together. The O and M actions in negligence were successful. In determining the appropriate standard of care for the CRCS at the time, the trial judge indicated that the American Red Cross (“ARC”) pamphlet released in March 1983 referred to AIDS and mentioned the high-risk groups and the signs and symptoms of AIDS. He noted that it was not until May 1984 that the CRCS released a pamphlet to potential donors which referred to AIDS and that the pamphlet did not mention the signs and symptoms of AIDS. Despite the opinions of two expert witnesses who testified that the “good health” question in the pamphlet provided an adequate alternative to symptom-specific questions, the trial judge concluded that the question did not meet the appropriate standard of care. The CRCS was in breach of the duty that it owed to users of blood and blood products, to use the same standard as its counterparts in the U.S. to screen blood donors. The trial judge also concluded that the causal link was established in both actions. He held that if either the description of the male homosexual high risk group had been less ambiguous and more precise in the May 1984 pamphlet or the infected donor had been asked if he experienced any of the signs and symptoms of AIDS (such as swollen lymph glands), he would have been precluded from donating blood on December 1984 and March 1985. The Court of Appeal upheld that decision.
The trial judge dismissed W’s action for failure to show causation. The trial judge found that even if the CRCS had met the proper standard of care, the infected donor still would have given blood. The trial judge rejected the evidence of the donor that in the fall of 1983 he was not aware of AIDS or the request by the CRCS that gay men who engaged in sex with other men should defer from donating blood, and concluded that the donor was aware of the issue but believed he could ignore the warnings to self-defer because he was in good health. The Court of Appeal set aside that decision. The court found that the CRCS was in breach of its duty of care because, during the relevant time frame, it failed to take adequate or any measures to screen persons known to pose a high risk of transmitting the HIV virus. On the issue of causation, the court applied the principles in Hollis. Given that the plaintiff bore the onus of proving causation, it held that the necessary causal link was presumptively established once it was shown that the CRCS had failed in its duty to implement adequate donor screening measures at the time the infected donor gave the fatal HIV-tainted blood to the plaintiff. There was no evidence of conduct on the part of the donor that would have made the CRCS’s failure to adequately screen high risk donors irrelevant. It was not open to the CRCS to dislodge the presumptive causal link by showing that proper screening measures would have proved ineffective in deterring the donor because of his own negligence.
Held: The appeals should be dismissed.
In the O and M actions, the Court of Appeal was correct in upholding the trial judge’s decision. The trial judge was entitled to find that the donor screening procedures of the CRCS May 1984 pamphlet, which was in use when the donor made his HIV-infected blood donations in December 1984 and March 1985, were inadequate and to reject the opinions of the experts who testified on the issue. The trial judge was not asked to assess complex scientific or highly technical matters. The issue was whether the general health question was sufficient to deter the infected donor from donating blood. The issue is not how an expert would respond to the donor screening question in the questionnaire, but how a lay person would respond.
In W’s action, the Court of Appeal wrongly relied on Hollis to determine causation on the basis of a presumptive causal link. Unlike Hollis, there is no “learned intermediary” in this case and a rebuttable presumption of causation is therefore an inappropriate standard to apply. In cases of negligent donor screening, it may be difficult or impossible to prove hypothetically what the donor would have done had he or she been properly screened by the CRCS. In such cases, therefore, the question should not be whether the CRCS’s conduct was a necessary condition for the plaintiffs’ injuries using the “but-for” test, but whether that conduct was a sufficient condition. The proper test for causation in cases of negligent donor screening is whether the defendant’s negligence “materially contributed” to the occurrence of the injury. In the present case, it is clear that it did. The plaintiff accordingly retains the burden of proving that the failure of the CRCS to screen donors with tainted blood materially contributed to W contracting HIV from the tainted blood. The trial judge erred on the question of causation. Rather than asking whether the donor would have self-deferred or been excluded from donating blood in September 1983 if he had seen the CRCS May 1984 pamphlet, the trial judge should have asked whether the donor would have self-deferred or been excluded if the CRCS had followed the appropriate standard of care for a professional voluntary blood bank in North America at the time, as represented by the ARC March 1983 pamphlet. The problem with the CRCS May 1984 pamphlet is the focus on being in “good health”, a focus which the trial judge found to be inadequate in O’s case. Even using the strict but-for test, which is not required in these types of cases, causation is proved on the facts. The trial judge concluded, in response to a hypothetical question, that the donor would not have been deferred or excluded from donating blood on September 1983, had he seen the CRCS May 1984 pamphlet. That would not have been the case, however, had the donor seen the ARC 1983 pamphlet. When the proper standard of care is applied the causal link is established.
Cases Cited
Distinguished: Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634; applied: Snell v. Farrell, [1990] 2 S.C.R. 311; referred to: Ter Neuzen v. Korn, [1995] 3 S.C.R. 674; Athey v. Leonati, [1996] 3 S.C.R. 458.
Statutes and Regulations Cited
Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
APPEALS from a judgment of the Ontario Court of Appeal (1999), 43 O.R. (3d) 461, 169 D.L.R. (4th) 689, 118 O.A.C. 217, 44 C.C.L.T. (2d) 205, 31 C.P.C. (4th) 24, [1999] O.J. No. 644 (QL), dismissing the Canadian Red Cross Society’s appeals and allowing the Walkers’ appeal from a judgment of Borins J. (1997), 39 C.C.L.T. (2d) 1, [1997] O.J. No. 4017 (QL), allowing the Osborne and M actions in negligence and dismissing the Walker action. Appeals dismissed.
Christopher Morrison and Peter K. Boeckle, for the appellant.
Bonnie A. Tough, Jill Lawrie, David Harvey and Cathy Beagan Flood, for the respondents Walker et al.
David Harvey, Bonnie A. Tough and Leah Rachin, for the respondents Osborne et al.
Kenneth Arenson, for the respondents A.A.M. et al.
The judgment of the Court was delivered by
1 Major J.— Canadians gradually became aware of the AIDS disease at the beginning of the 1980s. There was no scientific advice available and knowledge about the disease was practically all anecdotal. The scientific community, from that point on, began collecting data and sharing information as it became available. It was not until May 1985 that scientists developed the ELISA test that screened for the presence of HIV antibodies in the blood.
2 The three respondents (plaintiffs) in these appeals contracted HIV from blood and blood products supplied by the appellant, Canadian Red Cross Society (CRCS). Each respondent claimed that the appellant was negligent in the procedures used to screen blood donors with HIV and AIDS.
3 The respondents Osborne and M succeeded at their trial on liability. Damages were not in issue. However, the action by Walker was dismissed. Ultimately all three respondents were successful in the Ontario Court of Appeal.
4 The unique circumstances of these appeals confine these findings of negligence to cases arising in the same time period. The advancements in understanding HIV and AIDS have now equipped the medical community and the blood services industry to better protect the integrity of the blood supply. In light of what is now known it is difficult not to view the allegations of negligence with some hindsight. It is important to resist that temptation and to assess the claims on the basis of what was or reasonably ought to have been known at the time that the appellants attempted to screen blood donors who were infected with HIV or AIDS.
5 For the reasons that follow, the three appeals are dismissed.
I. Relevant Blood Donor Literature
6 For the purposes of these reasons, there were three crucial documents prepared for distribution or presentation to blood donors, which were used by Canadian and American voluntary blood banks during the relevant period. They are the American Red Cross (ARC) pamphlet entitled “An important message to all blood donors” published in March 1983; the CRCS donor questionnaire entitled “Canadian Red Cross Blood Transfusion Service Donor Questionnaire” published in April 1983; and the CRCS pamphlet entitled “An Important Message to Our Blood Donors” published in April 1984, implemented on May 1, 1984, and distributed to potential donors thereafter. The content of these documents bears directly on the issues in these appeals and the relevant parts are reproduced below. Other materials were published by the CRCS in 1985 and in subsequent years but those are not relevant in this appeal.
A. American Red Cross Pamphlet entitled “An important message to all blood donors” -- March 1983
This information is distributed to all potential blood donors to help prevent the spreading of certain illnesses from donors to patients by blood transfusions.
Please read this statement, and if you think that there is a risk that your blood could cause illness in a patient who might receive it, please refrain from donating blood at this time.
What Are These Illnesses?
Some persons may feel in excellent health but have viruses or other infectious agents in their blood that could cause illness in persons receiving a transfusion of their blood. If you think any of the following information pertains to you, please do not donate blood today:
1. Acquired Immune Deficiency Syndrome (AIDS). This newly described illness of unknown cause is believed to be spread by intimate personal contact and, possibly, by blood transfusion. Persons with AIDS have reduced defenses against disease and as a result may develop infections such as pneumonia, or other serious illnesses. At this time there is no laboratory test to detect all persons with AIDS. Therefore, we must rely on blood donors’ health histories to exclude individuals whose blood might transmit AIDS to patients who will receive that blood.
The Office of Biologics of the Food and Drug Administration has identified groups at an increased risk of developing AIDS. These groups are –
· Persons with symptoms and signs suggestive of AIDS. These include severe night sweats, unexplained fevers, unexpected weight loss, lymphadenopathy (swollen glands), or Kaposi’s Sarcoma (a rare cancer).
· Sexually active homosexual or bisexual men with multiple partners.
· Recent Haitian entrants into the United States.
· Present or past abusers of intravenous drugs.
· Sexual partners of persons at increased risk of AIDS.
. . .
What Should I Do?
If you believe that you may be carrying one of the above-mentioned illnesses, or if you are an individual in a group at increased risk of developing AIDS, we ask that you refrain from donating blood at this time. You may leave now without providing an explanation. Or, if you prefer, you may proceed to be deferred confidentially, without further questioning, by the health history interviewer.
B. CRCS Blood Transfusion Service Donor Questionnaire – April 1983
Thank you for your gift of blood. In order to protect you and the patients who may receive your blood, it is important that you be in good health. Please read these questions carefully each time you give. If your answer to any question is yes, please speak to the nurse who will tell you if you can give blood today.
A yes answer does not necessarily disqualify you as a donor.
1. Do you participate in any other blood programme?
(plasmapheresis, cell apheresis, etc.)
2. Have you fainted at any previous donation?
3. Do you now or have you ever had:
Hepatitis or “yellow jaundice”; Epilepsy (Seizures); High Blood Pressure; Lung Disease; Cancer; Malaria, Diabetes; Kidney Disease; Heart Disease; Blood Disease.
Any other chronic health problem?
4. In the past 3 years:
Have you been outside North America?
Did you take medication to prevent Malaria?
5. In the past six months have you had:
Any serious illness or have you required physician or hospital care? Transfusion of blood or blood products, Vaccination, Tattoo, Ear piercing, Acupuncture?
Contact with Infectious Hepatitis?
Have you been pregnant? Did you breast feed your infant?
6. Do you now have:
Any active allergic condition (Asthma or Hay Fever), sore throat, cold, flu, skin problems?
7. Are you currently taking any medications or injections?
8. Within the last 24 hours:
Have you taken any medication for headache, cough, cold, arthritis or stomach upset?
C. CRCS Pamphlet entitled “An Important Message To Our Blood Donors” – May 1, 1984
Recently it has become apparent that the condition known as AIDS (Acquired Immune Deficiency Syndrome) is probably blood borne and should be included in the list of illnesses which excludes donation.
AIDS is a condition in which the body’s natural resistance to various diseases is seriously reduced, frequently with fatal results. The cause is unknown. There is no laboratory test to detect it in its early, non-symptomatic stage. Therefore, it is recommended that for the present, persons who have been indicated, according to current evidence, as being at above average risk of contracting AIDS should not donate blood.
These persons include:
· homosexual or bisexual males who have multiple partners
· present or past abusers of intravenous drugs
· recent immigrants from, or visitors to, those areas where AIDS is endemic, i.e., Chad, Haiti and Zaire
· sexual partners of any of the above persons.
II. Facts
7 The respondents Alma Walker (“Walker”), Ronald Osborne (“Osborne”) and A.M.M. (“M”) each received blood products between 1983 and 1985 from the CRCS. The blood was tainted with the HIV virus. Eventually, both Walker and Osborne developed AIDS and died. M, who will be 20 in August 2001, is currently HIV-positive.
8 All three recipients brought actions against the CRCS claiming, among other things, that the CRCS was negligent in the process it took to screen blood donors with HIV and AIDS between 1983 and 1985. They claimed that as a result, the tainted blood infected them with HIV and caused Walker and Osborne to eventually develop AIDS and die.
9 The time frame of these claims was the early to mid-1980s. This was when information and data about HIV and AIDS was emerging quickly. In the early 1980s, scientists did not know how to test blood for the presence of HIV or AIDS.
10 In May 1985, scientists developed the ELISA test which screens for the presence of HIV antibodies in the blood. Prior to this, attempts to protect the blood system were restricted to screening blood donors to exclude those most likely to carry HIV. Consequently, the donor-screening procedures of the CRCS are the focus of these appeals.
11 As a result of evolving scientific knowledge in the 1980s, the chronology of events is important. It is necessary to review the facts in greater detail than usual to establish what the CRCS knew about HIV and AIDS, when they knew it, and how the CRCS responded to the new information.
A. The Walker Action
12 On September 12, 1983, “Robert M.” made a blood donation that was collected by the CRCS at its permanent clinic in the Manulife Centre in Toronto. This unit of blood, identified as 73693, was later determined to be HIV positive.
13 On October 1, 1983, the respondent Walker was transfused with two units of red blood cells while in York Finch General Hospital recuperating from a Caesarean section. One unit of red blood cells came from the HIV-infected unit 73693.
14 Her infection with HIV was confirmed on November 21, 1990. She died of AIDS on August 17, 1993 at the age of 31. Before her death, she started an action against the CRCS that is now carried on by her estate (the “Walkers”). In that action she claimed, among other things, that the CRCS failed to implement appropriate blood donor screening procedures and that its failure resulted in the donation of blood that was HIV positive.
15 Before he died, the donor Robert M. was examined under oath on November 13, 1992 in accordance with the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194. He testified that he was gay and had lived in Toronto from 1975 until the fall of 1983 when he moved to Montreal. He estimated that in the eight years he lived in Toronto he had approximately 1,000 homosexual encounters.
16 When asked about his knowledge of HIV and AIDS, Robert M. testified that he did not know that there was an emerging connection between AIDS and the gay community and that, as of 1983, he had no knowledge of either HIV or AIDS. He said that he was a member of the gay community in Toronto that “stuck together” because of the prejudice against it. He testified that he did not subscribe to newspapers and did not have any interest in current events. He was not involved politically with gay issues or concerns.
17 Robert M. was a regular blood donor in Toronto and continued to donate blood when he moved to Montreal in 1983 until he was told to stop in January 1987. He did not recall hearing any warnings through the media, conversations with friends, at work, or through the gay community that gay men should not donate blood. He testified that had he heard such warnings, he would have questioned why he should not donate blood because he was healthy. He also stated that had he seen or been given information on AIDS and about those people who fell within high risk categories and should not donate blood, he would have raised this issue with the nurse in attendance at the donor clinic. He said that he would have recognized that he belonged to one of the high risk groups – homosexual males with multiple partners.
18 When Robert M. made the fateful donation in September 1983, the CRCS’s donor-screening method was a questionnaire given to potential donors. This April 1983 questionnaire contained questions that generally pertained to the donor’s health, but made no reference to persons at high risk for contracting AIDS or to signs and symptoms of AIDS.
19 In April 1984, six months after Walker’s transfusion, the CRCS drafted a pamphlet entitled “An Important Message to Our Blood Donors”, which was presented to donors beginning on May 1, 1984.
20 The May 1984 pamphlet was both the first pamphlet to be used at CRCS donor clinics and the first CRCS document to make reference to AIDS. In that pamphlet, the CRCS requested that homosexual or bisexual males who have multiple partners refrain from donating blood.
21 The 1984 pamphlet obviously did not exist when Robert M. made his September 12th, 1983 donation. Robert M. made five subsequent donations in Montreal after the CRCS began to use the May 1984 pamphlet. He testified that he had not seen the pamphlet before it was shown to him when he gave evidence before his death.
22 When Robert M. was asked what he would have done had he been asked to read that May 1984 pamphlet on September 12, 1983, he said he would have told the nurse at the donor clinic that he was homosexual and asked him or her what he should do.
B. The Osborne Action
23 On December 17, 1984, a man referred to as “Everett” made a blood donation to the CRCS at the Manulife Centre in Toronto. This unit of blood, numbered 10746, was later found to be HIV positive.
24 In late December 1984, Osborne was admitted to hospital suffering from acute Guillain-Barré Syndrome (“AGBS”). On January 7, 1985, he was given plasma, a blood product, to treat his AGBS. One unit of blood products came from the HIV-infected unit 10746, donated by Everett.
25 The respondent Osborne fully recovered from AGBS but was diagnosed with HIV on August 28, 1990 and died of AIDS on June 18, 1993. Before he died, he brought an action against the CRCS that is now being carried by his estate (the “Osbornes”). In the action, he alleged, among other things, that the CRCS failed to implement appropriate blood donor screening procedures and that its failure resulted in the donation of blood that was HIV positive.
26 Before he died, the donor Everett was examined under oath on December 3, 1992 in accordance with the Ontario Rules of Civil Procedure. He testified that from 1974 to 1982 he was involved in sexual relations with between 200 and 400 different men. He said that he gave up the gay lifestyle in 1982. He testified that while he was living the gay lifestyle he was not aware of any connection between gay sex and HIV or AIDS.
27 Everett was a long-time blood donor who thought he was in good health. He did not know that he was HIV positive prior to giving blood on December 17, 1984. He had swollen lymph nodes in his neck, but these had been present since about 1975 and, as far as Everett was concerned, they had no effect on his overall health and gave no cause for concern in his donating blood. Although he had engaged in sexual relations with between 200 and 400 men between 1974 and 1982, he did not regard himself as a sexually-active homosexual at the time he donated blood in December 1984.
28 Everett said that he was asked to read a laminated heath questionnaire each time he attended the Manulife clinic. He testified that he never saw any mention of HIV, AIDS, gay sexual behaviour, homosexual behaviour or bisexuality in the material that he was given to read. Everett said that in December 1984, if he had been questioned by a nurse whether he had ever had sex with a man, he would have said yes.
29 Everett did not recall seeing the CRCS’s May 1984 pamphlet. When asked whether, on December 17, 1984, he would have included himself in the category of “homosexual or bisexual males who have multiple partners”, Everett said no. He had not been sexually active with men since 1982. However, had the pamphlet used the language “homosexual or bisexual males who have had multiple partners”, he said he would have included himself in that category.
C. The M Action
30 Everett also donated blood at the CRCS in the Manulife Centre on March 25, 1985. On March 27, 1985, when he was about 3 ½ years old, M received blood from that donation during the course of elective surgery to repair a hole in his heart. He contracted HIV. He is currently 19 years old and his infection is controlled by anti-viral medications. The M case was ordered to be heard with the Osborne case as the actions involved the same blood donor. All three actions, Osborne, M, and Walker were heard together.
31 In November 1985, the CRCS revised its pamphlet to describe a typical member of the group of high-risk donors as a person who was “a male and [has] had sex with another male since 1977”. Around the same time, it also began testing all blood donations for the presence of HIV antibodies using the ELISA test. In May 1986 the CRCS introduced the first brochure that asked symptom-specific questions about HIV.
III. Judicial History
A. Ontario Court of Justice (General Division) (1997), 39 C.C.L.T. (2d) 1
(1) The Osborne and M Actions
32 In the Osborne and M actions, the trial judge held that the CRCS owed a duty of care to users and recipients of blood and blood products to take reasonable measures to protect the safety of the blood, and blood products, it provided for therapeutic use.
33 With respect to the standard of care, the trial judge said that “the conduct of a voluntary blood bank will be measured against the professional standards of other voluntary blood banks” (para. 132). (All references to paragraphs refer to the reasons of the trial judge except where otherwise indicated.) The parties conceded that it was appropriate, in determining the standard of care for the CRCS, to consider the practices of the voluntary blood collection industry in the United States with respect to safeguarding blood.
34 In the trial judge’s view, “the Americans had it right” (para. 153). The ARC pamphlet, which was released in March 1983, made reference to AIDS, and made mention of high-risk groups and the signs and symptoms of AIDS. By March 1983, the CRCS had not released a pamphlet of its own. The donor questionnaire of April 1983 did not mention AIDS. It was not until May 1, 1984 that the CRCS released a pamphlet to potential donors which referred to AIDS.
35 The trial judge found that “the CRCS has provided no credible explanation why it did not make any AIDS risk information available to donors at clinic sites before May, 1984” (para. 155). He said at para. 158:
When one looks to the measures taken to screen donors by the voluntary blood collection industry in the United States, it becomes clear that the CRCS was not in compliance with all the professional standards followed in the United States. Because the CRCS had access to the same scientific body of knowledge and data available to the ARC, AABB and CCBC when they formulated the Joint Statement, [which refers to the Joint Statement on AIDS Related to Transfusion issued on January 13, 1983] and because it was in regular communication with the ARC, NIH and CDC, it is reasonable to conclude that the CRCS possessed the same knowledge as the American voluntary blood collection industry, or ought to have been possessed of it.
36 Borins J. noted that the Canadian and American blood collection agencies took different approaches to achieve the same objective. When the CRCS finally implemented the May 1984 pamphlet, it made no reference to the signs and symptoms of AIDS. The trial judge noted at para. 160:
The CRCS followed the “good health” approach, while virtually all of its peers in North America attempted to prevent, or reduce, the risk of infected blood from entering the blood supply by symptom specific questions deliberately designed and intended to eliminate donors at high risk for being infected with HIV.
37 He concluded that the “good health” question was based on a false premise and said that a donor could not know if he or she was in good health unless told what would constitute bad health in this context. The American procedure did this by identifying the signs and symptoms of bad health. According to the trial judge, this deficiency was illustrated by the fact that Everett had swollen lymph glands for several years. The fact that these glands were swollen for so long lead him to believe that that was his normal condition and that he was therefore in good health.
38 The trial judge stated that there was a basic contradiction in the CRCS’s May 1984 pamphlet. On the one hand, donors were told not to donate if they were not “feeling generally well”. On the other hand, they were told that “some apparently healthy persons” were infected with viruses. AIDS was not included in the list of diseases. The pamphlet listed those persons who were at high risk for AIDS, but said nothing about the health indicators of HIV infection. As a result, he concluded that the “good health” questions did not meet the appropriate standard of care.
39 The CRCS retained two expert witnesses at the trial, Drs. Allen and Barker, who testified that the “good health” question provided an adequate alternative to symptom-specific questions. Dr. Barker was the senior physician responsible for the general management of blood service operations at the 57 centres of the ARC in the United States. Dr. Allen was in charge of AIDS surveillance for the Centers for Disease Control and Prevention (CDC) in Atlanta and was recognized as being at the forefront of the worldwide fight against AIDS. Although Borins J. described them as “eminent physicians and scientists”, he did not, as he was entitled, accept their expert opinions. Borins J. stated at para. 162:
As I have indicated, the “good health” question is not an effective substitute to asking a donor about specific symptoms which, if he has them, are indicative that he may be infected with AIDS. Everett’s circumstances illustrate the inadequacy and ineffectiveness of the “good health” question. Had he been asked if he had swollen lymph glands, he would have answered affirmatively, and he would have been excluded as a donor.
40 Borins J. concluded that the standard of care adopted by the CRCS did not meet the standard required to safeguard the blood supply from the risk of infection by HIV. The CRCS was in breach of the duty that it owed to users of its blood and blood products to use the same standard as its counterparts in the United States to screen blood donors. It failed in its duty to exercise the standard that other blood banks used to screen high risk donors under similar circumstances.
41 Borins J. found that the causal link was established in the Osborne and M actions. He decided that if either the description of the male homosexual high risk group had been less ambiguous and more precise in the May 1, 1984 pamphlet (“homosexual or bisexual males who have had multiple partners”, rather than “homosexual or bisexual males who have multiple partners”), or if Everett had been asked if he experienced any of the signs and symptoms of AIDS (such as swollen lymph glands), he would have been precluded from donating blood on December 17, 1984 (Osborne) and March 25, 1985 (M).
42 The findings of negligence of the CRCS in respect of donor screening made in the Osborne case also apply in the M case because the CRCS was still using the May 1, 1984 pamphlet, which was found to be inadequate in the Osborne case, on March 25, 1985 when Everett donated the blood received by the infant M.
(2) The Walker Action
43 While he found liability on the part of the CRCS in the Osborne and M actions, Borins J. found that the CRCS was not liable for Walker contracting AIDS as the Walkers had failed to show causation. That is, the trial judge found that even if the CRCS had met the proper standard of care, Robert M. still would have given blood.
44 The trial judge rejected the evidence of the Walker donor, Robert M., that in the fall of 1983 he was not aware of AIDS or the request by the CRCS that gay men who engaged in sex with other men should defer from donating blood. Borins J. concluded that Robert M. was aware of the issue but believed he could ignore the warnings to self-defer because he was in good health.
45 Borins J. also noted that Robert M. continued to donate blood in Montreal after the CRCS May 1984 pamphlet was implemented. Although Robert M. testified that he had not seen the CRCS May 1984 brochure before it was shown to him at his examination in November 1992 (para. 35), Borins J. found that “[Robert M.] tried his best to avoid acknowledging that he received, and read, the AIDS pamphlets available in the Montreal clinic” (para. 40).
46 Borins J. held that “if the CRCS had published an AIDS pamphlet in September 1983 which was similar to the May 1, 1984, pamphlet, and if it had been given to [Robert M.] on September 12, 1983 at the Manulife clinic, he would have donated blood” (para. 41). He would have done so because he thought that he was in good health and believed that his blood would be tested.
47 Borins J. felt that the Walker case could be decided without determining negligence, as the case failed on causation. See para. 45:
In regard to donor screening, assuming, without deciding, that when Robert M. donated blood on September 12, 1983 the CRCS was negligent in not having instituted a donor screening programme which focused on asking the donor symptom-specific questions, the [Walkers] have not satisfied me that this would have resulted in the deferral of Robert M., who was in good health at that time.
48 In addition to dismissing the Walker action on a failure to prove causation, Borins J. found that the alternate claim based on strict liability in tort also failed.
49 Borins J. declined to decide whether the CRCS was similar to a manufacturer of whole blood or plasma. He concluded that the principle of strict liability in tort is not available to the Walkers regardless of how one characterizes the role of the CRCS in the collecting, processing and distribution of blood and blood substances.
50 Borins J. based his findings on several factors. The infected donations were obtained prior to the general use in Canada of the ELISA test in November 1985. He cited Sopinka J.’s comments in Ter Neuzen v. Korn, [1995] 3 S.C.R. 674, that blood, in some ways, is an inherently dangerous substance, in contrast to the commercial world, where a manufacturer has control over the goods. He examined case law in the United States and noted that although strict liability had become the norm for defective products, blood and blood products had been excepted from that rule in order to ensure that they continued to be available to the public. Borins J. concluded that on policy grounds, it would be wrong to find the CRCS strictly liable in tort for the infected blood received by Mrs. Walker on October 1, 1983.
B. Ontario Court of Appeal (1999), 43 O.R. (3d) 461
51 The court dismissed the CRCS’s appeal in the Osborne and M actions, but allowed the Walkers’ appeal.
(1) CRCS’s Appeal of the Osborne and M Actions
52 As the CRCS had agreed that it owed a duty of care to recipients of its blood and blood products, the issue before the Court of Appeal was the appropriate standard of care.
53 The trial judge had found that the CRCS May 1, 1984 pamphlet fell below the applicable standard of care, having regard to the practices in place in the United States. Before the Court of Appeal, it was argued that the trial judge could not reasonably reach that conclusion when the only two medical experts, Barker and Allen, testified that the steps taken by the CRCS met the appropriate standard of care. As stated above, the medical experts testified that the “good health” question in the CRCS’s May 1984 pamphlet was a reasonable alternative to asking symptom-specific questions to potential blood donors.
54 The Court of Appeal rejected that argument and held that the trial judge was entitled to conclude that the “good health” question was insufficient to meet the requisite standard of care (at p. 468):
[Borins J.’s] finding that the pamphlet was inadequate did not turn on any disagreement with the experts on a medical issue, but rather on his evaluation of whether the message conveyed by the pamphlet was sufficient to deter those at high risk of having the HIV virus from donating blood. The finding that the pamphlet did not meet that purpose turned on his evaluation of how that pamphlet would be read and understood by possible donors and not on the application of any medical expertise.
(2) The Walker Appeal
55 The trial judge declined to determine whether the CRCS had been negligent in the Walker case as the action failed on ca