Robb Estate et al. v. Canadian Red Cross Society et al., (2001) 152 O.A.C. 60 (CA)

• Judge: Osborne, A.C.J.O., Catzman and Charron, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 29, 2001
• Jurisdiction: Ontario
• Citations: (2001), 152 O.A.C. 60 (CA)

Robb Estate v. Red Cross (2001), 152 O.A.C. 60 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. NO.088

Alma Robb as Executrix of the Estate of L. Wayne Robb, Deceased, Alma Robb, Douglas Robb, Heather Robb, Edna Robb and George Robb

Judith Lynne Rintoul as Executrix of the Estate of C. Gray Rintoul, Deceased, Tracey Rintoul, Trevor Rintoul, Lynne Ferreira and Lisa Edgington

Christopher Farrow, also known as Christopher Le Blanc, Stephanie Beaulieu and Steven Farrow, by their Litigation Guardian, Joanne Farrow, and Joanne Farrow (plaintiffs/respondents to CRCS; and cross-appellants against CRCS, Ontario and Bayer) v. The Canadian Red Cross Society, Her Majesty the Queen in Right of Ontario, Bayer Corp. and Bayer Inc. (defendants/CRCS: appellant against plaintiffs; respondent to cross-appeal by plaintiffs; respondent to third-party appeal by Canada; Bayer and Ontario: respondents to cross-appeal by plaintiffs) and The Attorney General of Canada (third party/third-party appellant against CRCS)

(C34707; C34708; C34709; C34738; C34739; C34740)

Indexed As: Robb Estate et al. v. Canadian Red Cross Society et al.

Ontario Court of Appeal

Osborne, A.C.J.O., Catzman and Charron, JJ.A.

November 29, 2001.

Summary:

Robb, Rintoul and Farrow were infected with the HIV virus after having been treated with contaminated, non heat-treated, Factor IX for their hemophilia B. They sued, alleging negligence, the distributor Canadian Red Cross Society (CRCS), Ontario (as the principal responsible for the negligence of its agent CRCS) and the manufacturer Bayer. A claim for spoliation of evidence was also made against Ontario. Robb and Rintoul died before the trial. Their respective estates continued their actions. Members of their families made claims under the Family Law Act. CRCS cross-claimed against Ontario and Bayer. CRCS sought contribution and indemnity from Canada for unjustifiable delay in issuing a Notice of Compliance for uncontaminated, heat-treated, Factor IX. Ontario and Bayer cross-claimed against CRCS. Ontario also cross-claimed against Canada.

The Ontario Superior Court, in a decision reported [2000] O.T.C. 23, allowed the plaintiffs' action against CRCS. The court dismissed the plaintiffs' claims against Ontario and Bayer. CRCS' cross-claims against Ontario and Bayer were also dismissed. CRCS' third party claim against Canada was allowed. Bayer's cross-claim against CRCS was moot, because Bayer was not found liable. Ontario's cross-claim against CRCS and Canada was also moot, given that Ontario was not found liable. The court held that CRCS was 75% liable for the plaintiffs' damages and Canada was liable for 25%. The court assessed damages and valued the Family Law Claims. CRCS and Canada appealed from the trial judge's findings of negligence in the main action and in the third-party proceedings. They also appealed from some of the trial judge's damage assessments. The plaintiffs cross-appealed from: (i) some of the trial judge's damage assessments; (ii) the trial judge's dismissal of their claim against Bayer; and (iii) the trial judge's conclusion that Ontario did not commit the tort of spoliation. Bayer sought leave to cross-appeal the costs award in its favour.

The Ontario Court of Appeal allowed the appeal by CRCS and Canada and dismissed the plaintiffs' cross-appeals. The court granted Bayer leave to cross-appeal on costs but dismissed the appeal.

Editor's Note: The trial judge issued supplementary reasons reported at [2001] O.T.C. 133.

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - [See Evidence - Topic 2401 ].

Crown - Topic 1565

Torts by and against Crown - Negligence by Crown - Issuance of permits - Delay in issuing a notice of compliance - The plaintiffs were infected with the HIV virus after having been treated with contaminated, non heat-treated, Factor IX for their hemophilia B - They sued the distributor Canadian Red Cross Society (CRCS) - They alleged that uncontaminated heat-treated Factor IX was available in the United States at the relevant time and that CRCS failed to take the necessary steps to have the issuance of a Canadian Notice of Compliance accelerated so that heat-treated Factor IX could be distributed in Canada - CRCS third partied Canada for unjustifiable delay in issuing the Notice of Compliance - The Ontario Court of Appeal dismissed the third party claim - The court was not satisfied that there was any basis in the evidence to find that Canada breached a possible duty at common law to expedite the regulatory process - The principal cause of the federal Bureau of Biologics' delay in approving heat-treated Factor-IX was the time it took to obtain the viral inactivation data from the manufacturer - To succeed against Canada, CRCS had to prove that the Bureau could have caused the manufacturer to send this data sooner, or that the Bureau could have dispensed with the requirement for such data - No suggestion of that kind was made by anyone at trial - See paragraphs 64 to 66, 175 to 181.

Damage Awards - Topic 361

Injury and death - Disease or illness - Caused by blood transfusions - Farrow was infected with the HIV virus after having been treated with contaminated, non heat-treated, Factor IX for his hemophilia B - He sued the distributor Canadian Red Cross Society (CRCS) - Farrow was 18 years old at trial time - The trial judge allowed the action - The judge awarded, for future care costs, $85,000 less 20% for contingencies - The judge also awarded $80,000 less contingencies for a "lost years" claim - The Ontario Court of Appeal reversed the trial judge's decision on liability but, had it upheld it, would have upheld the damage awards - See paragraphs 183 to 187.

Damage Awards - Topic 361

Injury and death - Disease or illness - Caused by blood transfusions - Robb and Rintoul were infected with the HIV virus after having been treated with contaminated, non heat-treated, Factor IX for their hemophilia B - They sued the distributor Canadian Red Cross Society (CRCS) - Robb and Rintoul died before trial - Their actions were pursued by their respective estates - The trial judge allowed the actions and awarded each estate $175,000 for nonpecuniary general damages - The Ontario Court of Appeal reversed the trial judge's decision on liability but, had it upheld it, would have upheld the damage award - See paragraphs 188 to 190.

Damages - Topic 1543

General damages - General damages for personal injury - Pain and suffering, loss of amenities and other nonpecuniary damages - The plaintiffs were infected with the HIV virus after having been treated with contaminated, non heat-treated, Factor IX for their hemophilia B - They sued the distributor Canadian Red Cross Society (CRCS) - The trial judge allowed the action and awarded one of the plaintiffs $300,000 for non-pecuniary general damages - CRCS appealed respecting liability and the damage award - CRCS argued that there were no exceptional circumstances warranting an award beyond the upper limit set by the Supreme Court of Canada in the Andrews-Arnold-Teno trilogy - That limit was $265,000 here - The Ontario Court of Appeal allowed the appeal respecting liability but, even if it had dismissed it, it would have reduced the damage award to $265,000 - See paragraphs 164 to 166.

Damages - Topic 1763

Deductions for payments or assistance by third parties - By statute or government - Extraordinary assistance program - The plaintiffs were infected with the HIV virus after having been treated with contaminated, non heat-treated, Factor IX for their hemophilia B - They sued the distributor Canadian Red Cross Society (CRCS) - CRCS third partied Canada - The plaintiffs received, in return for a release, $120,000 each from Canada under a no-fault plan known as the Extraordinary Assistance Plan (EAP) - The trial judge allowed the main and third party actions and determined that the $120,000 represented a collateral benefit that should have been deducted from each plaintiff's damages - The Ontario Court of Appeal reversed the decisions against CRCS and Canada but, had it upheld the decisions, it would have deducted the $120,000 from the damages payable to the plaintiffs by CRCS and from the amounts payable by Canada to CRCS - See paragraphs 169 to 171.

Evidence - Topic 1582

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - A serology report by a testing laboratory said that a blood test for HIV was made in 1992 with respect to a blood sample taken from a Mr. Robb in May 1985 - The report also said that the blood test was negative - The Ontario Court of Appeal held that while the serology report constituted proof of the fact that the test in question was made with respect to a blood sample reportedly taken from Mr. Robb in May 1985, it did not constitute proof that the sample was in fact taken in May 1985 or that the sample was taken from Mr. Robb - Although it was in the ordinary business of the laboratory to receive and record information about the date of the sample collection, the notation did not refer to a contemporaneous event within the meaning of s. 35 and could not constitute proof of its content - The serology report could not be used to prove an event that took place seven years before its creation, all the more so where the event in question did not take place as part of the recorder's business - See paragraphs 145 to 148.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - The Ontario Court of Appeal held that the trial judge improperly drew adverse inferences against a defendant for its failure to call certain witnesses where those witnesses could also have been called by the plaintiff - The court added that the trial judge's conclusion that it "would place an impossible burden" on the plaintiffs to call these witnesses was inconsistent with the view she expressed during the trial and this reversal of position effectively deprived the defendant (and other parties) of procedural fairness - On that ground alone, the trial judge's judgment, even if it could otherwise be supported by the evidence, could not stand given the significance of the adverse inferences by the trial judge - See paragraphs 157 to 163.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - [See Torts - Topic 61 ].

Food and Drug Control - Topic 1106

Drugs - New drugs - Notice of compliance - Issuance of - [See Crown - Topic 1565 ].

Health - Topic 1042

Services - Blood bank organizations - Duty or standard of care - General - The plaintiffs were infected with the HIV virus after having been treated with contaminated, non heat-treated, Factor IX for their hemophilia B - They sued the distributor Canadian Red Cross Society (CRCS) - They alleged that uncontaminated, heat-treated Factor IX had been available in the United States since December 1984 and that CRCS unreasonably delayed its introduction by not taking the necessary steps to accelerate the granting of a Notice of Compliance so that the heat-treated Factor IX could be distributed - A Notice of Compliance was issued on April 10, 1985 and heat-treated Factor IX became available in Canada on May 30, 1985 - The trial judge, after finding that the plaintiffs were infected between April 7 and May 14, 1985, allowed the action, stating that CRCS had a duty to do "everything possible" to introduce heat-treated Factor IX - The Ontario Court of Appeal reversed the decision, holding that the trial judge placed the standard of care at too high a level, a level that ignored regulatory activity in which CRCS could not interfere - Also, CRCS was not required to take positive steps to accelerate the regulatory process - See paragraphs 56 to 63.

Health - Topic 1042

Services - Blood bank organizations - Duty or standard of care - General - The plaintiffs were infected with the HIV virus after having been treated with contaminated, non heat-treated, Factor IX for their hemophilia B - They sued the distributor Canadian Red Cross Society (CRCS) - They alleged that uncontaminated, heat-treated Factor IX had been available in the United States since December 1984 and that CRCS unreasonably delayed its introduction by not taking the necessary steps to accelerate the granting of a Notice of Compliance so that the heat-treated Factor IX could be distributed - A Notice of Compliance was issued on April 10, 1985 and heat-treated Factor IX became available in Canada on May 30, 1985 - The trial judge, after finding that the plaintiffs were infected between April 7 and May 14, 1985, allowed the action - The Ontario Court of Appeal, reversed this decision - The trial judge failed to appreciate that the availability of heat-treated F-IX in Canada was essentially dependant on circumstances that were beyond CRCS's control, i.e, regulatory requirements in both Canada and the United States - The trial judge never identified, and the evidence did not establish, what steps could have been taken by the CRCS to effectively hasten the regulatory process - Indeed, the evidence did not even suggest that the process could have safely been hastened - Nor did the evidence support the trial judge's conclusion that the CRCS embarked upon a course of action that delayed the transition to heat-treated F-IX - See paragraphs 73 to 119.

Practice - Topic 8813

Appeals - General principles - Duty of appellate court respecting findings based on professional opinion - [See Torts - Topic 61 ].

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give reasons for judgment - [See Torts - Topic 61 ].

Torts - Topic 61

Negligence - Causation - Causal connection - The plaintiffs were infected with the HIV virus after having been treated with contaminated, non heat-treated, Factor IX for their hemophilia B - They sued the distributor Canadian Red Cross Society (CRCS) - They alleged that uncontaminated, heat-treated Factor IX had been available in the United States since December 1984 and that CRCS unreasonably delayed its introduction by not taking the necessary steps to accelerate the granting of a Notice of Compliance so that the heat-treated Factor IX could be distributed - A Notice of Compliance was issued on April 10, 1985 and heat-treated Factor IX became available in Canada on May 30, 1985 - The trial judge, basing herself on an expert's report, found that the plaintiffs were infected between April 7 and May 14, 1985, and allowed the action - The Ontario Court of Appeal reversed the decision - Absent reasons from the trial judge on the weight to be given to the expert's opinion, the court conducted its own review and assessment of the relevant evidence - The court concluded that the plaintiffs failed to prove the facts on which the expert based his opinion, and hence, failed to prove the infection dates - Absent evidence to support the trial judge's conclusions on the infection dates, the plaintiffs did not establish that CRCS' negligence, as found by the trial judge, caused the plaintiffs to contract HIV - See paragraphs 67 to 72, 120 to 156.

Cases Noticed:

Walker Estate et al. v. York Finch General Hospital et al. (1999), 118 O.A.C. 217; 43 O.R.(3d) 461, affd. (2001), 268 N.R. 68; 145 O.A.C. 302; 198 D.L.R.(4th) 193 (S.C.C.), refd to. [para. 39].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 47].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 47].

Equity Waste Management of Canada et al. v. Halton Hills (Town) (1997), 103 O.A.C. 324; 35 O.R.(3d) 321 (C.A.), refd to. [para. 47].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 48].

Gottardo Properties (Dome) Inc. v. Toronto (City) - see Gottardo Properties (Dome) Inc. et al. v. Regional Assessment Commissioner, Region No. 9 et al.

Gottardo Properties (Dome) Inc. et al. v. Regional Assessment Commissioner, Region No. 9 et al. (1998), 111 O.A.C. 272; 162 D.L.R.(4th) 574 (C.A.), refd to. [para. 48].

McAlpine (Robert) Ltd. v. Byrne Glass Enterprises Ltd. et al. (2001), 141 O.A.C. 167 (C.A.), refd to. [para. 48].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 48].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 48].

Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 48].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 51].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 52].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 52].

Lapointe v. Hôpital Le Gardeur - see Lapointe v. Chevrette.

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262, refd to. [para. 54].

Hollis v. Dow Corning Corp. et al., [1995] 4 S.C.R. 634; 190 N.R. 241; 67 B.C.A.C. 1; 111 W.A.C. 1, refd to. [para. 70].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 71].

Adderly v. Bremner, [1968] 1 O.R. 621 (H.C.), refd to. [para. 148].

Kolesar v. Jeffries - see Kolesar Estate v. Joseph Brant Memorial Hospital and Malette.

Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette (1976), 12 O.R.(2d) 142 (C.A.), affd. [1978] 1 S.C.R. 491; 15 N.R. 302, refd to. [para. 148].

McGregor v. Crossland, [1994] O.J. No. 310 (C.A.), refd to. [para. 148].

Reimer v. Thivierge (1999), 126 O.A.C. 109; 46 O.R.(3d) 309 (C.A.), refd to. [para. 154].

Lambert v. Quinn et al. (1994), 68 O.A.C. 352; 110 D.L.R.(4th) 284 (C.A.), refd to. [para. 161].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 164].

ter Neuzen v. Korn - see Neuzen v. Korn.

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, consd. [para. 165].

Ficht v. Kitchen (1984), 47 O.R.(3d) 495 (H.C.), refd to. [para. 168].

MacIsaac and MacIsaac v. Smith and Thomas (1987), 20 O.A.C. 241; 58 O.R.(2d) 289 (Div. Ct.), refd to. [para. 168].

Rothwell et al. v. Raes et al. (1988), 66 O.R.(2d) 449 (H.C.), affd. (1990), 2 O.R.(3d) 332 (C.A.), leave to appeal refused [1991] 1 S.C.R. xiii; 135 N.R. 78; 49 O.A.C. 398, refd to. [para. 168].

Kenyeres (Litigation Guardian of) v. Cullimore, [1992] O.J. No. 540 (Gen. Div.), on appeal [1994] O.J. No. 3803 (C.A.), refd to. [para. 168].

Finlayson et al. v. Roberts et al. (1996), 15 O.T.C. 239 (Gen. Div.), revd. (2000), 136 O.A.C. 271 (C.A.), refd to. [para. 168].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 185].

Marchand v. Public General Hospital Society of Chatham et al. (1996), 51 O.T.C. 321 (Gen. Div.), affd. (2000), 138 O.A.C. 201; 51 O.R.(3d) 97 (C.A.), leave to appeal refused [2001] S.C.C.A. No. 66 (S.C.C.), refd to. [para. 186].

Granger et al. v. Ottawa General Hospital et al. (1996), 7 O.T.C. 81 (Gen. Div.), refd to. [para. 186].

Statutes Noticed:

Evidence Act, R.S.O. 1990, c. E-23, sect. 35 [para. 147]; sect. 52 [para. 151].

Counsel:

Peter K. Boeckle, Chris Morrison and Allyson Webster, for the Canadian Red Cross Society;

Ian R. Dick and Farhana Parsons, for The Attorney General of Canada;

Kenneth Arenson, for the Estate of L. Wayne Robb, deceased, Alma Robb, Douglas Robb, Heather Robb, Edna Robb George Robb, the Estate of C. Gray Rintoul, deceased, Tracey Rintoul, Trevor Rintoul, Lynne Ferreira, Lisa Edgington, Christopher Farrow, Stephanie Beaulieu, Steven Farrow and Joanne Farrow, plaintiffs;

Mario Pietrangeli, James V. Maloney and Victor J. Paolone, for Her Majesty the Queen in Right of Ontario;

Allyn Abbott, for Bayer Corp. and Bayer Inc. (Bayer).

This appeal was heard on June 5-7, 2001, by Osborne, A.C.J.O., Catzman and Charron, JJ.A., of the Ontario Court of Appeal.

The Court of Appeal released the following decision on November 29, 2001.