Court File and Parties

CITATION: Morgan v. Toronto (City), 2008 ONCA 603

DATE: 20080905

DOCKET: C46442

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., MacFarland and Epstein JJ.A.

BETWEEN:

Lucia Morgan

Plaintiff (Appellant)

and

The Corporation of the City of Toronto

Defendant (Respondent)

Counsel:

Richard E. Anka for the appellant

Peter Manderville and Belinda Bain for the respondent

Heard and released orally: September 3, 2008

On appeal from the judgment of Justice Mary A. Sanderson of the Superior Court of Justice dated November 27, 2006.

ENDORSEMENT

[1] We agree with the trial judge that the standard to be applied to the respondent (“Jones”) was that of a prudent and diligent nurse in the same circumstances. Jones had a duty to disclose all known material risks associated with the vaccine, Energix B.

[2] Against that background, the trial judge, in her comprehensive reasons for judgment, made strong findings of credibility and fact. Counsel for the appellant challenges many of the key findings. The most significant of these are:

(a) In 1994, concerns about the risk of serious neurological damage from Energix B had not risen to a level where the risk could properly be characterized as being known.

(b) Even if the risk of serious neurological damage had been disclosed, the appellant would have opted to receive the first shot.

(c) Specifically in relation to the second shot, the appellant did not tell Jones about experiencing flu-like symptoms after the first shot.

[3] There was ample support in the evidence for each of these findings.

[4] The finding that in 1994 the vaccine was largely regarded by medical practitioners as being safe was supported by the extensive medical evidence available to the trial judge. This medical evidence included both literature and the testimony of doctors called by the appellant, including her own family doctor upon whom she relied.

[5] The finding that Jones would have decided to be vaccinated even if advised of a possible link between the vaccine and neurological damage was supported by the evidence that the appellant considered that being vaccinated was a requirement of her highly valued new job and that the inoculation was recommended by her family doctor.

[6] The finding that the appellant did not advise Jones, before Jones administered the second shot, that she experienced an adverse reaction to the first shot was amply supported by the evidence including the irrefutable evidence that the appellant made no connection between the vaccine shot and her flu-like symptoms until months after the second shot.

[7] There are no grounds upon which this court could exercise its narrow power to interfere with these findings.

[8] On these findings the trial judge’s ultimate conclusions that Jones did not breach the standard of care, the appellant’s written consent to the vaccination was informed consent and that in any event no causation could be established, are unassailable on appeal.

[9] The appeal is therefore dismissed.

[10] Costs of the appeal to the respondent fixed at $8,000 inclusive of disbursements and G.S.T.

“Winkler C.J.O.”

“J. MacFarland J.A.”

“G. Epstein J.A.”