Robb Estate et al. v. St. Joseph's Health Care Centre et al., [2000] O.T.C. 23 (SupCt)

• Judge: Ellen Macdonald, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 21, 2000
• Jurisdiction: Ontario
• Citations: [2000] O.T.C. 23 (SupCt)

Robb Estate v. St. Joseph's Health Care, [2000] O.T.C. 23 (SupCt)

MLB headnote and full text

Temp. Cite: [2000] O.T.C. TBEd. JL.046

Alma Robb as Executrix of the Estate of L. Wayne Robb, deceased, Alma Robb, Douglas Robb, Heather Robb, by her Litigation Guardian Alma Robb, Edna Robb and George Robb (plaintiffs) v. The Canadian Red Cross Society and Her Majesty the Queen in right of Ontario, Bayer Corp. and Bayer Inc. and the Attorney General of Canada as Third Party (defendants)

C. Gray Rintoul, Trevor Rintoul and Tracey Rintoul by their Litigation Guardian, C. Gray Rintoul, Lynne Perreira and Lisa Edgington (plaintiffs) v. The Canadian Red Cross Society and Her Majesty the Queen in right of Ontario, Bayer Corp. and Bayer Inc. and the Attorney General of Canada as Third Party (defendants)

Christopher Farrow, also known as Christopher LeBlanc, Stephanie Beaulieu, by their Litigation Guardian, Joanne Farrow and the said Joanne Farrow (plaintiffs) v. The Canadian Red Cross Society and Her Majesty the Queen in right of Ontario, Bayer Corp. and Bayer Inc. and the Attorney General of Canada as Third Party (defendants)

(Nos. 92-CU-54356; 92-CU-59486; 98-CU-139060)

Indexed As: Robb Estate et al. v. St. Joseph's Health Care Centre et al.

Court of Ontario

Superior Court of Justice

Ellen Macdonald, J.

June 21, 2000.

Summary:

Robb, Rintoul and Farrow suffered from Hemophilia B. As part of their ongoing treatment, they received a biological product known as Factor IX concentrate. Factor IX was extracted from pools or lots of whole blood or plasma collected by the Canadian Red Cross Society (CRCS) from volunteer donors. CRCS contracted out the extraction to blood fractionators which included Cutter. Cutter was succeeded by the defendant Bayer. By the fall of 1984, the informed medical community knew that HIV was a blood borne virus that could be transmitted through factor concentrates, and that hemophiliacs who used these products were at risk of contracting HIV and developing AIDS. By then, it was also known that heat-treating factor concentrates inactivated the virus. On November 16, 1984, the Bureau of Biologics, in the Health Protection Branch of the federal Department of National Health and Welfare, issued a Directive to the CRCS. The Directive stipulated that the use of non-heat-treated products "could no longer be justified". It instructed CRCS to make a transition to heat-treated products "as soon as possible". At CRCS' request, Cutter manufactured 10,000 vials of heat-treated Factor IX. In December 1984, the product was available for shipment to Canada pending the completion of the necessary regulatory steps. On April 10, 1985, the Bureau of Biologics issued a Notice of Compliance for heat-treated Factor IX. Robb, Rintoul and Farrow were treated with non heat-treated Factor IX in April and May 1985. They were infected with HIV at that time. Heat-treated Factor IX had not been available for distribution to them until after July 1, 1985. Robb, Rintoul and Farrow sued CRCS, Ontario and Bayer. Robb and Rintoul died before the trial. Their respective estates continued their actions. Members of their families made claims under the Family Law Act. The plaintiffs alleged that CRCS and Ontario unreasonably delayed the introduction of heat-treated Factor IX. They pleaded that CRCS owed them a duty of care, which it breached when it provided them with tainted blood products. Against Bayer the plaintiffs claimed a breach of the duty to warn. They also submitted that Bayer breached a duty of care by committing acts which delayed the delivery of heat-treated products to Canada. CRCS cross-claimed against Ontario and Bayer. CRCS sought contribution and indemnity from Canada as a third party for any liability and damages that arose from the actions on the basis that there was unjustifiable delay on the part of the Bureau of Biologics in issuing the Notice of Compliance for heat-treated Factor IX. Ontario and Bayer cross-claimed against CRCS. Ontario also cross-claimed against Canada.

The Ontario Superior Court 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.

Crown - Topic 1565

Torts by and against Crown - Negligence by Crown - Issuance of permits - Delay in issuing a notice of compliance - See paragraphs 138 to 148.

Crown - Topic 5661

Agents of Crown or government - Liability in tort or under Quebec Civil Code - General - See paragraphs 149 to 174.

Damage Awards - Topic 361

Injury and death - Disease or illness - Caused by blood transfusions - See paragraphs 192 to 248.

Damages - Topic 1412

Special damages - Loss of wages - Deductions (incl. income tax and contingencies) - See paragraphs 241 to 245.

Damages - Topic 1763

Deductions for payments or assistance by third parties - By statute or government - Extraordinary assistance program - See paragraphs 220, 234 and 248.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - See paragraphs 60 to 70.

Evidence - Topic 2444

Special modes of proof - Presumptions - Specific presumptions - Destruction of evidence - Spoliation - See paragraphs 175 to 184.

Health - Topic 1042

Services - Blood bank organizations - Duty or standard of care - General - See paragraphs 71 to 90.

Health - Topic 1043

Services - Blood bank organizations - Duty or standard of care - Duty to warn - See paragraphs 126 to 128.

Health - Topic 1044

Services - Blood bank organizations - Duty or standard of care - Donor screening - See paragraphs 126 to 128.

Torts - Topic 54

Negligence - Causation - "But for" test - See paragraphs 104 to 121.

Torts - Topic 61

Negligence - Causation - Causal connection - See paragraphs 96 to 125.

Torts - Topic 65

Negligence - Causation - Evidence - See paragraphs 97 to 103.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - See paragraphs 188 to 191.

Torts - Topic 86

Negligence - Duty of care - Duty to warn - See paragraphs 186 to 187.

Torts - Topic 167

Negligence - Evidence - Presumption of negligence (res ipsa loquitur) - Res ipsa loquitur - Inference of negligence - See paragraphs 122 to 125.

Torts - Topic 2110

Strict liability - Dangerous things or activities - Tainted blood - See paragraphs 129 to 137.

Cases Noticed:

Kayton v. Lion's Driving Range Ltd. (1962), 40 W.W.R.(N.S.) 173 (B.C.S.C.), consd. [para. 60].

Walker Estate et al. v. York Finch General Hospital et al. (1997), 44 O.T.C. 81; 39 C.C.L.T.(2d) 1 (Gen. Div.), affd. and varied (1999), 118 O.A.C. 217; 43 O.R.(3d) 461 (C.A.), consd. [para. 64].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 254; 71 O.A.C. 241; 89 C.C.C.(3d) 402; 115 D.L.R.(4th) 419, refd to. [para. 95].

R. v. A.K. (1999), 125 O.A.C. 1; 45 O.R.(3d) 641 (C.A.), refd to. [para. 95].

Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634; 190 N.R. 241; 67 B.C.A.C. 1; 111 W.A.C. 1; 129 D.L.R.(4th) 609, refd to. [para. 115].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118; 156 D.L.R.(4th) 577, consd. [para. 122].

Pittman Estate v. Bain (1994), 19 C.C.L.T.(2d) 1 (Ont. Gen. Div.), refd to. [para. 131].

ter Neuzen v. Korn (1993), 29 B.C.A.C. 1; 48 W.A.C. 1; 81 B.C.L.R.(2d) 39; 103 D.L.R.(4th) 473; 16 C.C.L.T.(2d) 65 (C.A.), refd to. [para. 131].

Doe v. Miles Laboratories Inc. (1991), 927 F.2d 187 (C.A. 4th Cir.), refd to. [para. 133].

Cameron et al. v. Nova Scotia (Attorney General) et al. (1999), 172 N.S.R.(2d) 227; 524 A.P.R. 227; 177 D.L.R.(4th) 611 (C.A.), refd to. [para. 151].

St. Joseph's Island Hospital Association v. Plummer Memorial Public Hospital (1996), 24 O.T.C. 73 (Gen. Div.), refd to. [para. 151].

R. v. Eldorado Nuclear Ltd.; R. v. Unranium Canada Ltd., [1983] 2 S.C.R. 551; 50 N.R. 120; 10 O.A.C. 243; 4 D.L.R.(4th) 193; 8 C.C.C.(3d) 449, refd to. [para. 154].

Westeel-Rosco Ltd. v. South Saskatchewan Hospital Centre, [1977] 2 S.C.R. 238; 11 N.R. 514; 69 D.L.R.(3d) 334, refd to. [para. 157].

Christian Brothers of Ireland in Canada, Re (2000), 132 O.A.C. 271; 47 O.A.C.(3d) 674 (C.A.), refd to. [para. 157].

Professional Institute of the Public Service of Canada v. Senate of Canada et al. (1993), 162 N.R. 158 (F.C.A.), refd to. [para. 172].

Annapolis Valley Construction Ltd. v. Wisen (1965), 53 D.L.R.(2d) 459 (N.S.S.C.), refd to. [para. 172].

Mersey Docks & Harbour Board v. Coggins and Griffiths (Liverpool) Ltd. et al., [1947] A.C. 1 (H.L.), refd to. [para. 172].

Vos et al. v. Hospital for Sick Children et al. (1998), 79 O.T.C. 1 (Gen. Div.), refd to. [para. 177].

Robb Estate et al. v. St. Joseph's Health Care Centre et al. (1998), 64 O.T.C. 161 (Gen. Div.), refd to. [para. 177].

Robb Estate et al. v. St. Joseph's Health Care Centre et al. (1998), 115 O.A.C. 177; 42 O.R.(3d) 379 (Div. Ct.), refd to. [para. 177].

Spasic Estate v. Imperial Tobacco Ltd. (1998), 86 O.T.C. 28; 42 O.R.(3d) 391 (Gen. Div.), refd to. [para. 178].

Pacific Western Airlines Ltd., Re, [1977] 1 S.C.R. 62; 14 N.R. 21; 2 A.R. 539; 2 Alta. L.R.(2d) 72; 75 D.L.R.(3d) 257, refd to. [para. 181].

Temelini v. Ontario Provincial Police Commission et al. (1999), 120 O.A.C. 380; 174 D.L.R.(4th) 418 (C.A.), refd to. [para. 181].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452, refd to. [para. 193].

Thornborrow v. MacKinnon; Kane et al. v. Murphy (1981), 32 O.R.(2d) 740 (H.C.), refd to. [para. 207].

Reidy et al. v. McLeod Estate et al. (1986), 15 O.A.C. 200; 54 O.R.(2d) 661 (C.A.), refd to. [para. 207].

McDermott v. Ramadanovic Estate (1988), 27 B.C.L.R.(2d) 45 (S.C.), refd to. [para. 210].

Kiani et al. v. Minto Developments Inc. (1997), 24 O.T.C. 254 (Gen. Div.), affd. (1998), 112 O.A.C. 136 (C.A.), refd to. [para 214].

Neilsen et al. v. Kaufman (1986), 13 O.A.C. 32; 54 O.R.(2d) 188 (C.A.), refd to. [para. 215].

Pole v. Hendery and Hostmann-Steinberg (Canada) Ltd. et al. (1987), 23 O.A.C. 238; 61 O.R.(2d) 486 (C.A.), refd to. [para. 223].

MacIssac and MacIssac v. Smith and Thomas (1987), 20 O.A.C. 241; 58 O.R.(2d) 289 (Div. Ct.), refd to. [para. 223].

Proctor et al. v. Dyck et al., [1953] 2 D.L.R. 244 (S.C.C.), refd to. [para. 233].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 262].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, refd to. [para. 262].

R. v. W.J.F., [1999] 3 S.C.R. 569; 247 N.R. 62; 180 Sask.R. 161; 205 W.A.C. 161, refd to. [para. 262].

Authors and Works Noticed:

Cooper-Stephenson, Personal Injury Damages in Canada (2nd Ed. 1996), pp. 358 [para. 242]; 694 [para. 233].

Hogg, Peter, Constitutional Law of Canada (1985), pp. 218-219 [paras. 155, 156].

Linden, Allen M., Canadian Tort Law (5th Ed. 1993), pp. 91-92 [para. 258, footnote 5].

Medical Post, December 28, 1982, Blood Bank's Hidden Bomb, generally [para. 39].

Rafferty, Nicholas and Rowbotham, Patricia A., Developments in Contract and Tort Law: The 1997-1998 Term (1999), 10 S.C.L.R.(2d) 169, generally [para. 122].

Counsel:

Kenneth Arenson, for the plaintiffs;

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

Mario Pietrangeli and James Maloney, for Her Majesty The Queen in Right of Ontario;

Allyn Abbott, for Bayer Corp. and Bayer Inc.;

Ian R. Dick and Farhana Parsons, for the Attorney General of Canada (third party claim).

This action was heard by Ellen Macdonald, J., of the Ontario Superior Court, who released the following decision on June 21, 2000.

Please note: The following judgment has not been edited.