Dalhousie Journal of Legal Studies


Erin Fowler


On June 11, 2009, the World Health Organization (“WHO”) declared the H1N1 influenza a pandemic. H1N1 is a strain of the influenza virus that, in the past, usually only affected pigs. In the spring of 2009, it emerged in people in North America. This is a new strain of influenza, and because humans have little to no natural immunity to this virus, it can cause serious and widespread illness. As of November 1, 2009, there were more than 440 000 laboratory-confirmed worldwide cases of pandemic influenza H1N1 and over 6000 deaths reported to WHO. In late October, the H1N1 vaccine was approved for rollout across Canada. Since then, Canadians lined up en masse across the provinces and territories to receive the vaccine. This was in part due to the strong urging by the Government of Canada for every Canadian to receive the vaccine. Despite the advantages of wide-scale immunization, there is a significant drawback – many people who receive vaccines each year suffer adverse effects. Despite this fact, Quebec is the only province in Canada that currently has a plan to compensate people who may be injured by vaccinations. For the majority of Canadians, the only recourse when injured by a vaccine is to go through the tort system. By requiring individuals to proceed through the tort system (i.e.: having to prove someone was at fault for causing the injury), many people who have a severe reaction from a vaccine are left with no remedy. This article urges more jurisdictions in Canada to adopt a no-fault compensation scheme for vaccine-related injuries. It will explore how vaccine-related injuries are currently covered under medical malpractice and manufacturer liability schemes, and the reasons why many believe that medical malpractice approaches should be retained in their entirety. In contrast to these beliefs, this article will address how a no-fault system would prove to be an adequate and efficient means of compensating individuals who have been injured by vaccines. This argument will be advanced by looking at how other jurisdictions have implemented no- fault compensation for vaccine-related injuries. Finally, this article will address why it is essential for Canada to adopt this new compensation system as soon as possible in order to address the needs of citizens who may be injured by the new H1N1 vaccine.

Creative Commons License

Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.