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Torts - Wrongful Life. Florence v. Benzaquen
In Florence v. Benzaquen (Ont CA, 2021) the Court of Appeal reviewed some of the negligence law of 'wrongful life':B. The law on wrongful life cases
[15] The motion judge described a claim for wrongful life as one asserted by the child for a pregnancy that results in birth defects and where the child argues that, but for the negligence of the doctor, the child would not have been born.
[16] The motion judge then discussed the relevant caselaw, beginning with Dobson (Litigation Guardian of) v. Dobson, 1999 CanLII 698 (SCC), [1999] 2 S.C.R. 753, in which the Supreme Court held no duty of care could or should be imposed on a pregnant woman to her fetus or subsequently born child.
[17] Next, the motion judge discussed Lacroix (Litigation Guardian of) v. Dominique, 2001 MBCA 122, 202 D.L.R. (4th) 121, leave to appeal refused, [2001] S.C.C.A. No. 477. In Lacroix, a claim was brought because of abnormalities to a child caused by epilepsy medication the mother had taken while pregnant. The Manitoba Court of Appeal described the case as one of wrongful life because, had the mother known the effect of the medication, she either would not have taken it while pregnant or she would not have become pregnant; thus, the child would not have been born. The court did not recognize an action for wrongful life. It followed the reasoning in McKay v. Essex Area Health Authority, [1982] Q.B. 1166 (Eng. C.A.), and held that a doctor did not owe a future child a duty of care to not prescribe a medication to the mother because the imposition of such a duty “would immediately create an irreconcilable conflict between the duty owed by the doctor to the child and that owed to the mother”: at para. 39. In Lacroix, the court also said that claims based on the imposition of a duty on doctors to a future child are contrary to public policy because it would be impossible to assess damages.
[18] The motion judge then summarized three Ontario appellate decisions discussed later in these reasons: Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2, 88 O.R. (3d) 641, leave to appeal refused, [2008] S.C.C.A. No. 92; Paxton v. Ramji, 2008 ONCA 697, 92 O.R. (3d) 401, leave to appeal refused, [2008] S.C.C.A. No. 508; and, Liebig v. Guelph General Hospital, 2010 ONCA 450, 321 D.L.R. (4th) 378. This case law was reviewed in more depth at paras 35-52, and the whole case is relevant for the unsettled law of wrongful life.
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