[1] This is an appeal by the Crown from a decision of a Judge of the Federal Court, dated June 3, 2004, Leblanc at. el. v. Her Majesty the Queen, 2004 FC 774. In that decision, the Judge upheld an order of Prothonotary Tabib, dated June 24, 2003, striking without leave to amend, Mr. Leblanc's statement of claim for damages arising from his infection with HIV as a result of receiving tainted blood. However, the Judge also permitted Mr. Leblanc to proceed to trial on the basis of an amended statement of claim in which he pleads the tort of misfeasance in public office and breach of fiduciary duty, and claims damages for losses sustained as a result.

[2] Mr. Leblanc cross-appeals from the decision of the Judge, alleging that, if the Judge erred in allowing the amended statement of claim, he should have allowed the appeal from the Prothonotary's order striking the original statement of claim.

[3] We are all of the view that the Crown's appeal should be allowed and Mr. Leblanc's cross-appeal should be dismissed. We would restore the decision of the Prothonotary striking the original statement of claim without leave to amend. Our reasons are as follows.

[4] First, we were not persuaded that the Judge made any error in upholding the Prothonotary's decision. Like the judge, we can detect no error of law or any misapprehension of facts that vitiated her decision to strike the original statement of claim.

[5] Second, properly understood, the Prothonotary's decision extended to the whole of the original statement of claim. We do not agree with the Motions Judge's conclusion that it did not apply to the claims for misfeasance in public office and breach of fiduciary duty. In our opinion, these claims must fail, like the others, because, in order to succeed, Mr. Leblanc must allege that they caused him loss and he can prove no loss.

[6] This is because, ultimately, his loss depends on a finding that unlawful conduct by the Crown caused undue delay in the importation of "clean", heat-treated F-IX, a blood product, and that, since he received blood from the existing, tainted stock, he thereby sustained loss, namely, infection with HIV. However, the Ontario Court of Appeal held in Robb v. C.R.C.S. (Nov. 29, 2001) that there was no undue delay in the importation of the heat-treated F-IX. Since the Crown in right of Canada was a third party to the Ontario litigation, Mr. Leblanc is precluded by the doctrine of issue estoppel from bringing a cause of action in the Federal Court that has, as one of its essential ingredients, an allegation that he was injured by undue delay in the importation into Canada of F-IX.

[7] We would note that Mr. Leblanc has not pleaded that the Crown is liable for the alleged independent tort of spoliation on the basis of the destruction of documents in order to prevent their use as evidence in litigation.

[8] For these reasons, the appeal will be allowed and the cross-appeal will be dismissed. Counsel for the Crown did not ask for costs and none will be awarded. Given the reasons for our conclusion, it is not necessary for us to consider whether it was appropriate for the Judge, in the circumstances of this case, to entertain the amended statement of claim.

"John M. Evans"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-320-04

STYLE OF CAUSE: HER MAJESTY THE QUEEN, JO HAUSER, LILETH

GERVAIS RANDALL KLOTZ

Appellants

and

CHRISTOPHER LEBLANC, JOANNE BEAULIEU,

STEPHANIE BEAULIEU STEVEN FARROW by his

Litigation Guardian Joanne Beaulieu

Respondents

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: JUNE 15, 2005

REASONS FOR JUDGMENT

OF THE COURT: (ROTHSTEIN, EVANS & MALONE JJ.A.)

DELIVERED FROM

THE BENCH: EVANS J.A.

APPEARANCES:

John Spencer

James Gorham FOR THE APPELLANTS

Kenneth Arenson FOR THE RESPONDENTS

SOLICITORS OF RECORD:

John H. Sims, Q.C.

Deputy Attorney General of Canada FOR THE APPELLANTS

Kenneth Arenson

Barrister & Solicitor

Toronto, Ontario FOR THE RESPONDENTS

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