Mario Pietrangeli

The plaintiffs, who suffered from Hemophilia B, contracted HIV from unheated Factor IX blood products distributed by the Canadian Red Cross Society (CRCS).

They sued the CRCS, Bayer, and Ontario in negligence, alleging a delay in the introduction of heat-treated Factor IX.

The CRCS claimed over against Canada, alleging regulatory delay.

The trial judge found the CRCS and Canada liable for delaying the transition to heat-treated products.

On appeal, the Court of Appeal overturned the trial decision, finding that the CRCS and Canada did not breach their respective standards of care, as the delay was due to necessary regulatory approvals.

The Court also found that the plaintiffs failed to prove the dates of their infections, which was fatal to causation, and that the trial judge erred in drawing adverse inferences against the CRCS for not calling certain witnesses.

The moving party moved to quash portions of the responding parties' cross-appeals seeking damages for the tort of spoliation, arguing the issue was conclusively determined by a prior Divisional Court order.

The responding parties argued they should be permitted to take advantage of a subsequent change in the law recognizing spoliation as an independent tort.

The Court of Appeal dismissed the motion to quash, holding that issue estoppel may not apply where there has been a change in the law, and the matter should be determined after full argument in the ordinary course.