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 causation. The
Court of Appeal did determine that issue. It found that the respondent CRCS
was in breach of its duty of care because, during the relevant time frame, the
CRCS failed to take adequate or any measures to screen persons known to pose a
high risk of transmitting the HIV virus. The CRCS knew or ought to have known
that its failure to implement adequate screening measures could result in the
transmission of HIV infected blood to recipients.
56
The remaining issue was causation. The Court of Appeal overruled the
trial judge on the ground that he was incorrect in dismissing that action on
the failure to show causation. According to the trial judge, the Walkers bore
the additional onus of showing that had proper screening measures been in
place, Robert M. would have been deterred from donating. The Walkers’ claim
failed at trial because they did not succeed in meeting this onus.
57
In allowing the Walker appeal, the Court of Appeal relied on Hollis
v. Dow Corning Corp., [1995] 4 S.C.R. 634. In that case, it was
found that the manufacturer, Dow, was negligent in failing to adequately warn
doctors of the possibility that its breast implants could rupture. However, the
plaintiff did not have to prove that if warned, the doctor would have
communicated that warning to the plaintiff. La Forest J. stated at para. 60:
Simply put, I do not think a manufacturer should be
able to escape liability for failing to give a warning it was under a duty to
give, by simply presenting evidence tending to establish that even if the
doctor had been given the warning, he or she would not have passed it on to the
patient, let alone putting an onus on the plaintiff to do so. Adopting such a
rule would, in some cases, run the risk of leaving the plaintiff with no
compensation for her injuries. She would not be able to recover against a
doctor who had not been negligent with respect to the information that he or
she did have; yet she also would not be able to recover against a
manufacturer who, despite having failed in its duty to warn, could escape
liability on the basis that, had the doctor been appropriately warned, he or
she still would not have passed the information on to the plaintiff. Our tort
law should not be held to contemplate such an anomalous result. [Emphasis in
original.]
58
The Court of Appeal applied the principles in Hollis, supra,
to the Walker case. Given that the Walkers 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 Robert M. donated the fatal HIV-tainted
blood to the plaintiff Walker. There was no evidence of conduct on the part of
Robert M. 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 Robert M. because of his own negligence.
59
The Court of Appeal concluded that had the trial judge applied the
correct causal analysis, he would have found the necessary causal link and,
given the Court of Appeal’s finding of negligence, the appeal was allowed.
IV. Issues
A. Standard
of Care
60
Did the Court of Appeal err in holding that the trial judge was correct
to find that the CRCS May 1, 1984 pamphlet was inadequate in the Osborne
and M appeals, despite the evidence of two medical experts to the contrary?
B. Causation
61
Did the Court of Appeal err in finding that the necessary causal link in
the Walker appeal was presumptively established once it was shown that
the CRCS had failed in its duty to implement adequate donor screening measures
at the time of Robert M.’s donation and that it was not open to the CRCS to
dislodge that presumptive causal link?
V. Analysis
A. The
AIDS Crisis
62
The trial judge set out the history and the knowledge of AIDS that was
developing in the United States to determine the standard of care required in
safeguarding the Canadian blood supply (see paras. 134 to 152). A summary of
which is useful to demonstrate the uniqueness of the time frame in these
appeals, and to highlight the difference between the American and Canadian
responses to the emerging AIDS crisis.
63
The first AIDS cases were diagnosed in North America in June and July of
1981. As more cases surfaced, it appeared that AIDS was especially prevalent
among certain groups, namely homosexual males, intravenous drug users, and
recently-immigrated Haitians. It was not until January 1984 that the medical
community asserted with certainty that AIDS was transmissible by blood.
64
In July 1982, three cases of Pneumocystis carinii pneumonia were
diagnosed in hemophiliacs, raising the possibility that AIDS might be blood
borne.
65
In December 1982, the Centers for Disease Control and Prevention
reported a case of “Possible Transfusion-Associated AIDS (TAA) - California”.
In that case, an infant, who did not fit into any of the previously noted high
risk categories for AIDS, received blood platelets from transfusions. The
infant contracted AIDS and the transfusions he received became the focus of the
medical community’s attention.
66
In January 1983, a Workgroup to Identify Opportunities for the
Prevention of AIDS was convened. At that meeting, based on the emerging
information about AIDS, a consensus was reached for the proposition that
members of high risk groups for AIDS should somehow be excluded from donating
blood. The report indicates that “no consensus was reached as to the best
method for doing this”.
67
The Workgroup rejected the idea of screening out male homosexuals, as
that procedure would be “intrusive”, “unethical” and might “institutionalize a
stigma on groups already prone to prejudice and persecution”. Further, the
Workgroup questioned whether such a procedure would be effective, given the
possibility that many potential donors would be reluctant to disclose that they
were homosexual, or might conclude that they were not at risk for contracting
or carrying the disease. No recommendations were made at this meeting on how
to screen high risk donors.
68
On January 13, 1983, the ARC, the American Association of Blood Bankers,
and the Council of Community Blood Banks issued a “Joint Statement on AIDS
Related to Transfusion” (“Joint Statement”). The Joint Statement concluded
that evidence was inconclusive that AIDS was transmissible by blood. It
recommended more thorough screening for symptoms of AIDS in potential donors;
however, it did not recommend that donors be screened on the basis of their
sexual preference. It further noted that only 10 of 800 reported AIDS cases,
diagnosed to date, were possibly blood-related, while approximately 10 million
transfusions had been performed in the lapse of one year from 1982.
69
On March 4, 1983, the American Public Health Service Committee issued
its promised recommendations for donor screening. The committee recommended
that, prior to donating blood, donors be given pamphlets describing high risk
groups so that they could self-screen based on the information in the
pamphlets. The Bureau of Biologics of the Food and Drug Administration (FDA)
recommended improved educational programs for blood bank personnel so that they
could better assist donors in recognizing the symptoms of AIDS. These
guidelines were promptly implemented by the ARC.
70
The ARC prepared a pamphlet in March 1983 for use at its donor clinics
entitled “An important message to all blood donors”.
71
Donors were required to sign an acknowledgment that they had read the
ARC 1983 pamphlet concerning AIDS, and to acknowledge their understanding that
members of high risk groups had been asked to refrain from donating blood.
B. Canada’s
Response
72
The CRCS’s response to the Joint Statement of January 1983 is usefully
compared to the ARC response. The CRCS became aware of the Joint Statement
shortly after it was released. On February 7, 1983, the CRCS and the Canadian
Hemophilia Society met. The latter recommended expanding the CRCS donor
questionnaire to include “questions more specifically related to the
symptomatology of AIDS” (para. 149 (emphasis deleted)).
73
On March 10, 1983, the National Office of the CRCS issued a press
release advising “members of groups identified as high risk of carrying
Acquired Immunodeficiency Syndrome (AIDS) not to give blood. These groups are:
Patients diagnosed with AIDS, sexual partners of AIDS patients, persons with
AIDS symptoms, sexually-active homosexual or bisexual men with multiple
partners, recent Haitian immigrants, current or past drug abusers, and sexual
partners of individuals at high risk for AIDS” (para. 147 (emphasis deleted)).
74
The CRCS also indicated it was to expand the steps taken to protect
blood recipients from the possible transmission of AIDS through blood by
expanding the current screening process for blood donors to include specific
questions to detect potential donors with symptoms of AIDS or who might be
carriers of AIDS. In the March 10, 1983 press release, the CRCS assured that
it was “doing everything possible under current conditions of knowledge to
protect recipients of blood and blood products from any possible threat to
their health” and promised to “continue to monitor new developments, in
association with other agencies in Canada and the United States, and [to]
revise its position promptly should medical or other scientific findings
indicate that a different course of action is warranted” (para. 147 (emphasis
deleted)).
75
It is significant to note that Borins J. stated at para. 148:
It is clear that in identifying “persons with AIDS
symptoms” as a discrete high risk group, and in committing itself to extending
its current donor screening process to “include specific questions to detect
potential donors with symptoms of AIDS or who might be carriers of AIDS”, the
CRCS had adopted the recommendations of the Joint Statement and the FDA, as
reflected in ARC pamphlet.
76
On April 15, 1983, the National Advisory Committee and Blood Transfusion
Services met. After what was described as a “spirited debate”, it was decided
not to ask symptom-specific questions of potential donors, but instead to
modify the existing donor questionnaire by adding the preamble with a “good
health” aspect. The revised preamble read as follows (at para. 150):
Thank you for your gift of blood. In order to protect you and the
recipient of your blood, it is important that you be in good health.
Please read these questions carefully each time you give. If your answer is
yes to any question, notify the nurse.
A yes answer does not necessarily disqualify you as
a donor. [Emphasis added.]
77
The decision not to ask symptom-specific questions of potential donors
was apparently made with disregard for the advice of the CRCS’s own medical
staff. The Medical Directors of the CRCS met on March 24-25, 1983, where the
general consensus reached was that it would be appropriate to ask donors
symptom-specific questions. There was no satisfactory explanation as to why
the National Advisory Committee and Blood Transfusion Services decided not to
follow the advice of its own medical staff, and instead retained the “good
health” approach.
78
As early as April 1983, the CRCS also decided to implement a
donor-screening pamphlet, albeit not symptom-specific. However, this was not
done for over a year (May 1, 1984).
79
Finally, in November 1985, the CRCS revised its 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” (para. 144). The CRCS
began testing all blood donations for the presence of HIV antibodies using the
ELISA test in November 1985. In May 1986 the CRCS introduced the first
brochure that asked symptom-specific questions about HIV.
C.
Osborne and M
80
The issue is whether the trial judge was entitled to find that the donor
screening procedures of the CRCS May 1984 pamphlet, which was in use when
Everett made his blood donations on December 17, 1984 and March 25, 1985, were
inadequate. The trial judge rejected the opinions of the only two experts who
testified on this issue, Allen and Barker. As noted earlier, these experts
testified that the “good health” question provided an adequate alternative to
symptom-specific questions in the CRCS May 1984 pamphlet. The trial judge
found that the CRCS’s “good health” questions were not an effective substitute
for symptom-specific questions about AIDS as they were based on a false premise
(at para. 160):
A donor cannot know if he or she is in “good health” unless told what
would constitute “bad health” in the context of the purpose of the “good
health” question. The American procedure did this by identifying the signs and
symptoms of bad health from the perspective of the object it was seeking to
achieve by donor screening. Nowhere is the false premise better illustrated
than in the case of Everett, who had swollen lymph glands for several years. A
person’s good health is often subjective. A person may experience a particular
condition for a long period of time, but because of the long period during
which he or she has experienced it, believe that it is his or her normal
condition. Such a person may believe that he or she is in good health. This
illustrates why a “good health” question is not a substitute for the symptom
specific questions. [Emphasis in original.]
81
Borins J. found that the CRCS May 1984 pamphlet contained a basic
contradiction (at para. 161):
On the one hand, donors were told not to donate if they were not
“feeling generally well”. On the other hand, donors were told that “some
apparently healthy persons” were infected with viruses. Yet other than
indicating those people at high risk for AIDS, nothing was said about health
indicators of HIV infection. To use a “good health” question and nothing more
to ask a person if he believed he had AIDS, would have been like asking Mr.
Osborne if he thought he had AGBS, without telling him its signs and symptoms.
82
I agree with the Court of Appeal in upholding the trial judge’s
conclusions in the Osborne and M cases. The trial judge was not
asked to assess complex scientific or highly technical matters. Simply, 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 questions in the questionnaire, but how a lay
person would respond (see also Ter Neuzen, supra, at p. 701).
83
I agree with the reasoning of the Court of Appeal at p. 468:
Nor is the factual issue at the heart of Justice
Borins’ conclusion that the screening procedures followed by the CRCS were
inadequate, one that fell within the exclusive domain of medical experts. His
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.
D. Walker
84
The Court of Appeal confirmed Borins J.’s finding on the issue of
negligence but disagreed with him on the issue of causation. On the question
of negligence the Court of Appeal stated at p. 471:
1. That the CRCS was in breach of its duty in
failing, by September 1983, to have in place at its donor clinics a program
designed to screen out individuals known to pose a high risk of transmitting
the HIV virus; and
2. That the CRCS knew or ought to have known that
its failure to implement adequate screening measures could result in the
transmission of HIV-infected blood to innocent recipients such as Mrs. Walker.
85
The Court of Appeal relied on Hollis, supra, to determine
causation on the basis that, as the Walkers bore the onus of proving causation,
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
when Robert M. donated the HIV-tainted blood that proved fatal to Walker.
There was no evidence of extraneous conduct on the part of Robert M. which
would have made the CRCS’s failure to adequately screen high risk donors
irrelevant. Therefore, they concluded that 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 Robert M. on the basis of any
extraneous conduct. On this point I respectfully disagree.
86
The law of torts may, from time to time, reflect policy considerations
which can impact, in part, on the burden of proof in a negligence action. The
Court of Appeal here in Walker relied on Hollis to determine
causation on the basis of a presumptive causal link. In my opinion, Walker
can be distinguished from Hollis as it does not involve the “‘learned
intermediary’ rule”. In Hollis, the manufacturer discharged its duty of
care to the consumer through an informed intermediary. The manufacturer was
entitled to rely on the assumption that the learned intermediary would
discharge this duty of care, and, once it relied on this assumption, the causal
link was presumptively established. This permissible delegation of
responsibility and the resulting reliance supports a presumptive causal link.
However, in Walker there is no “learned intermediary” and, as such, a
rebuttable presumption of causation is an inappropriate standard to apply.
87
With respect to negligent donor screening, the plaintiffs must establish
the duty of care and the standard of care owed to them by the CRCS. The
plaintiffs must also prove that the CRCS caused their injuries. The unique
difficulties in proving causation make this area of negligence atypical. The
general test for causation in cases where a single cause can be attributed to a
harm is the “but-for” test. However, the but-for test is unworkable in some situations,
particularly where multiple independent causes may bring about a single harm.
88
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. The added element of donor conduct in these
cases means that the but-for test could operate unfairly, highlighting the
possibility of leaving legitimate plaintiffs uncompensated. Thus, the question
in cases of negligent donor screening 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. “A contributing factor is material if
it falls outside the de minimis range” (see Athey v. Leonati,
[1996] 3 S.C.R. 458, at para. 15). As such, the plaintiff retains the burden
of proving that the failure of the CRCS to screen donors with tainted blood
materially contributed to Walker contracting HIV from the tainted blood.
89
The trial judge found that the Walker action failed on causation
because Robert M. was not deterred from donating blood when the CRCS May 1984
pamphlet was in existence. Borins J. stated at para. 41:
On the basis of the view that I hold of Robert M.’s
evidence, I have reached the conclusion 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 him on September 12, 1983 at the Manulife clinic, he
would have donated blood. He would have done so because he was in good health
and believed that his blood would be tested. I am satisfied that the May 1,
1984 brochure was available to him in Montreal on at least some of the
occasions he attended to make a donation, and that it did not deter him from
donating blood at that clinic. This supports the view that I hold that if
there had been a similar brochure available on September 12, 1983 at the
Manulife clinic, it would not have deterred him on that occasion.
90
With respect, the trial judge asked himself the wrong question. Rather
than asking whether Robert M. would have self-deferred or been excluded from
donating blood on September 12, 1983 if he had seen the CRCS May 1984
pamphlet, he should have asked whether Robert M. would have self-deferred
or been excluded if the CRCS had followed the appropriate standard of care as
represented by the ARC March 1983 pamphlet. It is my opinion that the
ARC March 1983 pamphlet represented the appropriate standard of care for a
professional voluntary blood bank in North America at that time.
91
Borins J. noted the primacy of the ARC March 1983 pamphlet over the CRCS
May 1984 pamphlet during a discussion of the standard of care to be used in the
Osborne case. He noted that both pamphlets make reference to the newly
described condition known as AIDS. However, the CRCS May 1984 pamphlet states
that it is important that a donor be in “good health” and cautions the
prospective donor to “be sure that you are feeling generally well”. However,
the CRCS May 1984 pamphlet does not mention any signs or symptoms of AIDS. On
the other hand, the ARC March 1983 pamphlet points out that although “some
persons may feel in excellent health”, they may have viruses or infectious
agents in their blood and informs donors that the ARC must rely on donors’
health histories to exclude individuals whose blood might contain AIDS. “The
ARC then includes among the high risk groups those persons ‘with signs and
symptoms suggestive of AIDS’, and lists the signs and symptoms....” (para.
143).
92
Listing the signs and symptoms of AIDS in the CRCS May 1984 pamphlet (as
was done in the ARC 1983 pamphlet) would not have excluded Robert M. as he had
no signs or symptoms of AIDS on any occasion that he donated blood. Therefore,
it is not surprising that the trial judge concluded at para. 45 that a donor
screening programme which focussed on symptom-specific questions would not have
deterred Robert M. from donating blood.
93
However, the true problem with the CRCS May 1984 pamphlet is the focus
on being in “good health”, a focus which Borins J. found to be inadequate in
the Osborne case. Borins J. found that Robert M. likely would have
donated blood because he believed that he was in good health and believed that
his blood would be tested (para. 41). The earlier ARC 1983 pamphlet makes it
clear that some persons may feel in excellent health but may be carrying
viruses.
94
Another important difference is that, according to the trial judge,
while the ARC 1983 pamphlet is clearly focussed on the AIDS problem, the CRCS
May 1984 pamphlet is not.
95
Borins J. noted at para. 155: “In my view, 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”.
96
The trial judge applied the correct standard of care (the ARC 1983
pamphlet) in the Osborne action, but erred on the question of causation
in the Walker action. The Court of Appeal seemed to recognize this
discrepancy in the trial judge’s reasons. The Court of Appeal stated at pp.
474-75:
In coming to this conclusion, the trial judge placed
considerable emphasis on the fact that Robert M. continued to donate blood
after May 1, 1984, even though by that time, the CRCS had introduced a new
pamphlet at its donor clinics which referred to AIDS and cautioned certain high
risk donors, including homosexuals with multiple partners such as Robert M.,
not to donate blood.
Although the trial judge did not find that Robert M.
had read the new pamphlet on any of the five occasions after May 1, 1984 when
he donated blood, he concluded, at least implicitly, that even if he had,
Robert M. would not have been deterred because of his mistaken belief that he
could donate so long as he was in good health and that his blood would, in any
event, be tested.
Much as the Walkers contest these findings, and
questionable though they may be, we think they were available on the evidence
and we are not in a position to interfere with them. What troubles us is
not so much the findings of the trial judge as they relate to Robert M., but
the further finding, implicit in his ultimate conclusion, that the donor
screening measures implemented by the CRCS in May 1984 were adequate to prevent
homosexual males with multiple partners, like Robert M., who did not have
AIDS-specific symptoms, from donating blood.
Without going into detail, suffice it to say that,
in our view, there are two constituent elements against which the adequacy of
donor screening measures in place at CRCS clinics after May 1, 1984 should have
been tested. The first, the informational component, involves a consideration
of the nature and extent of the information made available to potential
donors. The second, the awareness component, relates to the measures taken to
ensure that this critical information is brought to the attention of potential
donors and fully understood by them.
We do not propose to say more about the subject,
other than to note that it would appear that the trial judge did not follow
this approach. Had he done so, he may well have concluded that the donor
screening measures implemented by the CRCS in May 1984 were inadequate and that
proper screening measures would, more likely than not, have deterred Robert M.
from donating. [Emphasis added.]
97
Although the Court of Appeal declined to interfere with the findings of
Borins J. on this issue, there is evidence in the record which demonstrates
that the causal link was established. As stated above, the proper test for
causation in negligent donor screening cases is whether the defendant’s
negligence materially contributed to the plaintiff’s harm. 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 Robert M. would not have been deferred or excluded
from donating blood on September 12, 1983 had he seen the CRCS May 1, 1984
pamphlet. That would not have been the case had Robert M. seen the ARC 1983
pamphlet. Robert M. told the trial judge that had he seen, or been given,
information on AIDS and the four high risk categories of people who were
requested not to donate blood, he would have raised the issue with a nurse,
since he fit into one of the risk groups -_ homosexual males who
have multiple partners. The trial judge disbelieved him, expressing the
thought that Robert M. did not raise the issue because he considered himself to
be in good health. This was the very misconception which the CRCS’s May 1,
1984 pamphlet failed to warn against, while the ARC 1983 pamphlet did so
expressly.
98
As a result, the CRCS’s appeal in the Walker action should be
dismissed. The Court of Appeal erred in this case by imposing liability on the
basis of an inference of causation. When the proper standard of care is
applied in this appeal (that is, the requirements of the ARC pamphlet of March
1983) the causal link is established.
99
I adopt the reasoning of Sopinka J. in Snell v. Farrell,
[1990] 2 S.C.R. 311, where he considered the causation requirement with respect
to malpractice cases at pp. 326-27:
The question that this Court must decide is whether
the traditional approach to causation is no longer satisfactory in that
plaintiffs in malpractice cases are being deprived of compensation because they
cannot prove causation where it in fact exists.
Causation is an expression of the relationship that
must be found to exist between the tortious act of the wrongdoer and the injury
to the victim in order to justify compensation of the latter out of the pocket
of the former. Is the requirement that the plaintiff prove that the
defendant’s tortious conduct caused or contributed to the plaintiff’s injury
too onerous? Is some lesser relationship sufficient to justify compensation?
I have examined the alternatives arising out of the McGhee [[1973] 1
W.L.R. 1] case. They were that the plaintiff simply prove that the defendant
created a risk that the injury which occurred would occur. Or, what amounts to
the same thing, that the defendant has the burden of disproving causation. If
I were convinced that defendants who have a substantial connection to the
injury were escaping liability because plaintiffs cannot prove causation under
currently applied principles, I would not hesitate to adopt one of these
alternatives. In my opinion, however, properly applied, the principles
relating to causation are adequate to the task. Adoption of either of the
proposed alternatives would have the effect of compensating plaintiffs where a
substantial connection between the injury and the defendant’s conduct is
absent. Reversing the burden of proof may be justified where two
defendants negligently fire in the direction of the plaintiff and then by their
tortious conduct destroy the means of proof at his disposal. In such a case it
is clear that the injury was not caused by neutral conduct. It is quite a
different matter to compensate a plaintiff by reversing the burden of proof for
an injury that may very well be due to factors unconnected to the defendant and
not the fault of anyone. [Emphasis added.]
100 Although
the trial judge rejected Robert M.’s evidence and found that he tried his best
to avoid acknowledging that he received, and read, the CRCS May 1984 pamphlet
available in the Montreal clinic, that was the wrong question for the trial
judge to ask. The proper question is whether Robert M. would have been
excluded had he been shown the ARC 1983 pamphlet, which meets the appropriate
standard of care. It is worth noting that there is no suggestion of malicious
conduct on the part of Robert M. such that he was incapable of being screened
as a blood donor.
VI. Disposition
101 The
CRCS’s appeals of the Osborne, M and Walker actions are
dismissed with costs. The hospitals named in the style of cause are not
parties in these actions.
Appeals dismissed with costs.
Solicitors for the appellant: MacMillan Rooke Boeckle,
Toronto.
Solicitors for the respondents Walker et al.: Hodgson,
Tough, Shields, DesBrisay, O’Donnell, Toronto.
Solicitors for the respondents Osborne et al.: Hodgson, Tough,
Shields, DesBrisay, O’Donnell, Toronto.
Solicitor for the respondents A.A.M. et al.: Kenneth Arenson,
Toronto.