HIV Litigation

On June 21, 2000, Madam Justice Macdonald of the Ontario Supreme Court of Justice released her decision in Robb v. CRCS. The case involved trial together of three actions arising from HIV infection of hemophiliacs through a blood product known as Factor IX. It is the first “tainted blood” action involving the federal and provincial governments to proceed to trial.

In her decision, Justice Macdonald found the Red Cross and the Government of Canada liable for damages of approximately $1.4 million, exclusive of interests and costs, on the basis of a 75/25 split. The action was dismissed against Ontario and a co-defendant.

The Court found that the Red Cross delayed the introduction of safer, heat-treated factor products, and that the Government of Canada, as regulator of blood products, failed to grant timely regulatory approval. The action was dismissed against Ontario on the basis that its involvement was limited to membership in a federal-provincial committee which reviewed Red Cross programs and budgets, but which was not subject to a duty of care in tort. The court also found that the Red Cross was not the agent of Ontario.

The decision raises a number of interesting issues relating to the liability of distributors of biological products, as well as the issues of government liability, co-operative federalism and the funding of health-care.

Kenneth Arenson in Toronto acted for the plaintiff in the suit. Mario Pietrangeli of Hughes, Amys in Toronto acted as lead counsel for Ontario, with the assistance of James Maloney. Peter Boeckle, Allyson Webster and Christopher Morrison of MacMillan Rooke Boeckle in Toronto acted for the Canadian Red Cross. Allyn Abbott of Rogers, Moore in Toronto acted for Bayer Corp. Ian R. Dick and Farhana Parsons of Justice Canada acted for the the Attorney General of Canada who had intervenor status in the case.