Digests

Leblanc v. Canada

T-436-03

2003 FCT 736, Tabib P.

24/6/03

27 pp.

Motion to strike plaintiff's statement of claim on ground Court lacks jurisdiction to determine cause of action, claim disclosing no reasonable cause of action, frivolous, vexatious or otherwise abuse of process on grounds of issue estoppel and/or collateral attack on judgment of Ontario Court of Appeal in matter of Robb v. St-Joseph's Health Centre; Rintoul v. St. Joseph's Health Centre; Farrow v. Canadian Red Cross Society (2001), 9 C.C.L.T. (3d) 131--Plaintiff, suffering from hemophilia, contracted HIV when treated with blood factor concentrate--By fall of 1984, informed medical community knew HIV could be transmitted through factor concentrates--In autumn of 1984, demonstrated that heat treatment of factor concentrates would inactivate HIV--As result of discovery, Bureau of Biologics (BoB) issued directive to Canadian Red Cross Society (CRCS) in November 1984, stipulating that use of non-heat-treated factor concentrates no longer could be justified and calling for transition to heat-treated factor concentrates as soon as possible--At initiative of Canadian Blood Committee (CBC), comprised of representatives from provinces, territories, federal government, created in 1981, Consensus Conference of all key people in blood industry convened in late 1984 to consider how to implement BoB directive--CBC's practice of recording proceedings on audio-cassette, and preparing verbatim transcript changed in 1989, when any existing tapes of earlier meetings ordered to be erased, transcript destroyed --Thereafter, formal records of decisions only documentary source of what occurred during deliberations of CBC-- Although application for required Notice of Compliance for factor concentrate made in July 1984, NOC not issued by BoB until April 10, 1985--Heat-treated factor concentrate manufactured in U.S. fist arrived in Canada in May 1985, distributed for first time by CRCS in early July 1985-- Plaintiff Leblanc, treated with unheated factor concentrate between April and May 1985, found to have been infected by HIV in March 1986--In 1992, plaintiffs took action in Ontario against CRCS and Ontario Government, for negligence--Canada not defendant in Ontario action, plaintiffs having accepted payments from Canada under no-fault plan--Both CRCS, Ontario pursued third-party claims for contribution, indemnity against Canada for any liability they may have had to plaintiffs--Before trial, plaintiffs sought to amend statement of claim to add, against Ontario, claim based on tort of spoliation of evidence (ordering destruction of transcripts, audiotapes)--In Endean v. Canadian Red Cross Society (1998), 157 D.L.R. (4th) 465, British Columbia Court of Appeal held destruction or spoliation of evidence only gave rise to evidentiary rule raising presumption against party guilty of spoliation, not to independent tort--At trial (Robb v. Canadian Red Cross Society, [2000] O.J. No. 2396 (S.C.J.)), trial judge dismissed action against Ontario, condemned CRCS to pay damages to plaintiffs, held Canada liable to indemnify CRCS to extent of 25% of damages paid to plaintiffs--On appeal, plaintiffs permitted to include in cross-appeal specific claims for tort of spoliation against Ontario-- Ontario Court of Appeal reversed trial judge's findings of liability on part of CRCS and Canada; plaintiffs' cross appeals dismissed--Finding, inter alia, plaintiffs had failed to prove dates upon which became infected; according-ly, even had findings of negligence been upheld, plaintiffs could not establish such negligence caused them to become infected with HIV--Herein, plaintiffs allege three defendants, employees of federal government, initiated, carried out CBC's decision to destroy transcripts, audiotapes of CBC proceedings--Plaintiffs therefore seek damages against three individual defendants for torts of misfeasance in public office, trespass, negligence, and/or breach of fiduciary duties; damages against Canada as member of CBC, vicariously for acts of individual defendants--Plaintiffs claim right to preservation of records under Access to Information Act (ATIA), National Archives of Canada Act (NACA)-- Applying jurisdictional test (statutory grant of jurisdiction, existing body of federal law, "law of Canada") set out in ITO--International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752, Court without jurisdiction over claims raised by plaintiffs against individual defendants--Fact that power allegedly misused by federal public servant emanating from federal statute, or that duty alleged to have been breached created by federal statute not sufficient in itself to satisfy second part of jurisdictional test--Plaintiffs had not made any requests under ATIA-- Right to access not to be confused with right to preservation of records--Plaintiffs never acquired any rights under ATIA, and defendants did not owe any duties specifically to plaintiffs under Act--With respect to NACA, stated purpose thereof to conserve records of national significance for archival purposes, not to facilitate conservation of evidence for purposes of private litigation; duties created by NACA clearly public duties only--Doctrine of collateral attack not appropriate for application herein--Criteria for issue estoppel: same question has been decided; judicial decision final; parties or privies same persons as parties to proceedings in which estoppel raised or privies: Angle v. M.N.R., [1975] 2 S.C.R. 248--Issue of spoliation by Canada remaining live issue between plaintiffs, defendants, but issues of duty of care and causation identical to issues raised herein--Ontario Court of Appeal decision final with refusal of leave to appeal to Supreme Court of Canada--Sufficient privity between plaintiffs, Canada in Ontario action (where Canada third party) to meet third part of test on issue estoppel--No unusual circumstances herein such that operation of doctrine of issue estoppel would work injustice--Even if issue estoppel did not arise herein, plaintiffs' action should nevertheless be dismissed as being abuse of process--Plaintiffs' action cannot succeed in view of findings on causation made in Ontario action, which plaintiffs estopped from challenging--However culpable destruction of CBC's records might have been, it has caused none of damages claimed by plaintiffs--Either parties bound by conclusions of Ontario Court of Appeal on issues of duty of care, causality and damages, in which case issue estoppel applies and plaintiffs' action must fail, or they are not, in which case evidence on these issues must by presented before this Court for determination, resulting in relitigating entire Ontario action, which took eight years before Ontario Superior Court of Justice, including eight months of trial-- This result cannot be countenanced, lest it bring administration of justice into disrepute--Access to Information Act, S.C. 1980-81-82-83, c. 111, Sch. I-- National Archives of Canada Act, R.S.C., 1985 (3rd Supp.), c. 1.