Divisional Court Affirms That Exposure to Increased Risk of Harm Is Not Actionable

On June 22, 2023, in McGee v. Dr. Farazli (McGee), the Ontario Divisional Court (Divisional Court) overturned the certification of an action for increased risk of harm in a proposed class proceeding. This appellate decision affirms recent jurisprudence across the country that a cause of action for damages for increased risk of harm cannot be sustained at law.

Background

Approximately 6,800 patients received a letter from Ottawa Public Health (OPH) advising that there was a low risk that they had been exposed to Hepatitis B, Hepatitis C or HIV at the appellant’s endoscopy clinic. The letter cited a lapse in the sterilization protocols at the clinic as the reason for this risk. Patients were further advised that blood testing was available to assess their viral status. Upon completion of its review, OPH concluded that there was no transmission of Hepatitis B or C or HIV within the clinic where the lapse occurred.

The proposed representative plaintiff received the notification letter, underwent testing and was advised that she had not been exposed to Hepatitis B or C or HIV. She commenced a class action seeking compensation for exposure to an increased risk of infection, as well as for the shock, trauma and inconvenience she allegedly experienced as a result of receiving the notification letter and the testing that followed.

While some patients tested positive for one of the blood-borne diseases, it was not possible to establish whether the infection was transmitted at the clinic. The plaintiff’s own expert conceded that the passage of time since the event made it impossible to causally link any infections to the clinic.

The certification judge certified liability for increased risk as a common issue, but did not address whether a cause of action for damages for increased risk alone was sustainable at law.  

Divisional Court Decision

The Divisional Court overturned the certification decision, holding that the certification judge erred in certifying a common issue based on a claim for increased risk of harm.

Relying on the Supreme Court of Canada’s decision in Atlantic Lottery Corp. Inc. v. Babstock and the Ontario Superior Court’s decision in Palmer v. Teva Canada Ltd. (Palmer), the Divisional Court affirmed that there is no right to be free from the prospect of damage. Rather, there is only the right not to suffer damage that results from exposure to unreasonable risk. The mere creation of risk is not wrongful conduct. 

The Divisional Court also held that, because there is no cause of action for increased risk of harm, a claim for economic losses that arises in response to an increased risk of harm is also not sustainable. The quantum of economic damages must pass a de minimis threshold: an action for compensation should not be set in motion on account of a trivial injury. As well, any anxiety experienced as a result of learning of an increased risk of harm must rise to the level of serious trauma or illness to be compensable. Claims for anxiety associated with an increased risk of harm are not compensable — it is only anxiety associated with the materialization of that risk that is compensable.

Key Takeaways

McGee comes on the heels of two other recent product liability cases, Palmer and Dussiaume v. Sandoz Canada Inc., both of which are currently under appeal. Those cases also held that Canadian law does not provide remedies for an increased risk of harm. Mere creation of risk is not actionable conduct in the absence of a present manifestation of the harm.

For further information, please contact:

Jessica Lam      +1-416-863-5847
Imad Alame     +1-416-863-2237

or any member of our Litigation & Dispute Resolution group.