Just What the Doctor Ordered: A Canadian Approach to Medical Monitoring and Toxic Risk
| Author | Brandon D Stewart |
| Pages | 271-337 |
JUST WHAT THE DOCTOR
ORDER ED: A C ANADIAN
APPROACH TO MEDIC AL
MONITORING AND TOXIC RISK
Brandon D Stewart
Abstract: This article ask s whether a pre-manifest ation cause
of action for medical monitoring might as sist victims of mass
toxic exposure in their ongoing struggle to recover damages
for personal injuries. Medical monitoring claims normally
include requests for the periodic application of a diagnostic
medical examination or test designed to detect a latent dis-
ease, but whose cost is not fully covered by a provincial or
private health insurer. It is argued that to require a present
physical injury before such cost s are awarded is completely
inconsistent with t he underlying preventive purpose of med-
ical monitoring and the common law’s jealous protection of
personal autonomy over the body. Instead, a prim a facie claim
for medical monitoring should arise whenever a defendant
tortiously expose s a plaintiff to a chemical or toxic substance
that increases her risk of developing a serious latent disease
for which medical monitoring is re asonably necessary. Such
a defendant could avoid liability by rely ing on any of the usual
tort law defences, or by challeng ing the appropriateness of
the requested monitoring reg ime. Class members would also
be required to prove exposure and their collective need for a
particular screening test to minim ize the risk of indetermin-
ate liability. Within these parameters, medical monitoring c an
properly address toxic risk , deter the irresponsible disch arge of
synthetic chemic als, and create a system of civil liabi lity where
recovery for involuntary toxic exposures is truly pos sible.
CCAR 8-2.indb 271 4/25/2013 3:10:38 PM
CCAR 8-2.indb 272 4/25/2013 3:10:38 PM
JUST WHAT THE DOCTOR ORDERED:
A CANADIAN APPROACH TO MEDICAL
MONITORING AND TOXIC RISK
Brandon D Stewart*
A. INTRODUCTION
In the decade following its inception, Canadian class action legislation
was hailed as a u seful tool for addressing mass envi ronmental har ms. As
noted by the Supreme Court of Canada in Western Shopping:
The class action plays an important role in toda y’s world. The rise of
mass production, t he diversification of corporate owner ship, the advent
of mega-corporation, a nd the recognition of environment al wrongs have
all contributed to it s growth. Conflict s like these pit a large group of
complainant s against the alleged w rongdoer . . . The class action offers
a means of efficient ly resolving such disputes in a m anner that is fair to
all parties.1
Since this decis ion, it has become abundantly clear that C anada’s class
action system has failed the citizens it was designed to assist. Victims of
toxic exposure continue to be denied compensation because chemical s
are presumed innocent until proven guilty and scientific uncertainty is
resolved in the favour of industr y.
* BA, Highest Honours a nd Gold Medalist (Wilfr id Laurier University), JD
candidate a nd recipient of the McCarthy Tétrault LLP s econd-year prize
for Highest Stand ing (University of Ottawa). The author will b e articling
with Ler ners’ Toronto office begin ning in July 2013. He would like to thank
Professor Lynda M . Collins for exposing hi m to the fascinatin g world of toxic
torts and for her ex tremely helpful comments on ea rlier drafts of this a rticle.
The author would also li ke to thank Dr. Heidi Robert s for graciously agreeing
to discus s her research on lung cancer s creening. Their contribution s made
this art icle possible.
CCAR 8-2.indb 273 4/25/2013 3:10:38 PM
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