Justice Horace Krever gets set to begin the session of the Commission of Inquiry on the Blood System in Canada in Montreal on Sept. 16, 1994.Ryan Remiorz/The Canadian Press
On June 25, 1973, William Ferguson, a 58-year-old milkman, underwent a routine medical test, an angiography. Due to rare complications, he was left quadriplegic and, years later, sued the hospital.
Justice Horace Krever of the Ontario Supreme Court dismissed the claim, saying no one was at fault. But in a lengthy judgment, he also described the system for compensating patients harmed by care gone wrong as “deplorably unfair” and in “urgent need of correction,” and expressed deep sympathy for Mr. Ferguson.
While Mr. Krever is best known for heading two blockbuster public inquiries – one the tainted blood tragedy and the other on the privacy of medical records – that run-of-the-mill civil case graphically illustrates the principles that guided his remarkable career as a jurist: a strict adherence to the law, a profound desire to correct structural injustices and a deep empathy for victims.
“He was a living, breathing embodiment of his principles,” said Fran Kiteley, a former student who became a judge.
And his unbending commitment to those legal, ethical, and moral principles rocked governments and profoundly reshaped Canada’s health and legal systems.
Mr. Krever, a former lawyer, law professor, judge and royal commissioner, died of congestive heart failure on April 30, at age 94, in Toronto.
He was born in Montreal, the son of Jewish immigrants. His father, Morris Krever, came from Poland as a child and his mother, Leah Levy, from Romania.
Horace Krever was raised in Toronto, where he excelled as a student at Harbord Collegiate, and then at the University of Toronto, where he studied political science, economics and then law.
Legal training was very different in the 1950s than it is today. There were only 10 people in his graduating class and he developed close relationships and life-long friendships with two professors: Bora Laskin, who would later become Chief Justice of the Supreme Court of Canada, and Caesar Wright, long-time dean of the U of T law school.
“I was a young kid who matured more quickly than I otherwise would have, I think, because I was surrounded by veterans, who knew a lot more about life,” he recalled in an oral history published by the Osgoode Society for Canadian Legal History.
While a student, he married Elizabeth (Betty) Wiggin, a young secretary at the U of T. Auspiciously, their wedding day in 1954 coincided with Hurricane Hazel, one of the deadliest storms to ever hit Toronto.
Horace Krever was called to the bar in Ontario in 1956 and began his career as a litigation lawyer with a small firm, Kimber and Dubin. Charles Dubin went on to become Chief Justice of Ontario and headed a number of public inquiries, notably the Royal Commission to Inquire into the Use of Drugs and Banned Practices Intended to Increase Athletic Performance after Ben Johnson was stripped of an Olympic gold medal for doping. Jack Kimber became Master of the Supreme Court, chairman of the Ontario Securities Commission, and president of the Toronto Stock Exchange.
Mr. Krever left private practice in 1964 to become a professor of law at the University of Western Ontario and then at his alma mater, the University of Toronto.
Mr. Krever served on both the senate and governing council at U of T. He was also a member of the Committee on the Healing Arts and the Ontario Council of Health, and president of the Medico-Legal Society of Toronto until he ascended to the bench.
In 1975, he was appointed Justice to the Supreme Court of Ontario. Two years later, in 1977, Justice Krever would become a household name as chairman of the Royal Commission of Inquiry into the Confidentiality of Health Information.
At the time, medical records were treated casually, if not contemptuously. Physicians and health ministry employees would routinely share information with police and insurance companies, often for payment. Police and private investigators would also sneak into hospitals, wearing lab coats, and steal files, which were used to mount smear campaigns against public figures such as politicians.
Media stories about these dubious practices sparked outrage and spurred the inquiry which, in turn, led to more shocking revelations.
“That commission was a big deal at the time, and it still has repercussions to this day,” said Harvey Strosberg, the commission’s counsel.
The exhaustive, hard-hitting, 1,626-page final report essentially stated that medical records must be sacrosanct, that breaches of confidentially can only be countenanced in exceptional circumstances, and that when violations occur, patients should be compensated. It also led to a rewriting of privacy laws so that health information could not be released without a patient’s explicit permission. That, in turn, gave fuel to a nascent patient rights’ movement.
In 1979, Justice Krever issued another judgment in the case that had broad, lasting implications, when he ruled that a lawyer could be sued for negligence if they do not properly represent a client. Until Demarco v. Ungaro, lawyers who messed up had essentially a free pass which, in the judge’s view, undermined the administration of justice.
Justice Krever was elevated to the Ontario Court of Appeal in 1986. Two years later, he would co-author a Royal Society of Canada report on the potential legal and medical implications of a new illness that was sweeping the world - AIDS.
That knowledge would serve him well when, in 1993, the veteran judge was tapped to lead the Commission of Inquiry on the Blood System in Canada.
An estimated 2,400 hemophiliacs and transfusion recipients were infected with HIV-AIDS, and another 25,000 or so contracted hepatitis C from tainted blood in 1980s and 1990s, the worst public health disaster in Canadian history.
Extensive media coverage had revealed a litany of shocking negligence that included outright lies about the risks of infection, delays in testing, distribution of blood products known to be tainted and destruction of evidence. Victims demanded compensation, and justice.
Horace Krever in Toronto in 1996.Peter Bregg/MACLEAN'S PHOTO / CP
Justice Krever took the task to heart. The inquiry process lasted almost four years in total. There were 247 witnesses, half of them victims. The exercise cost more than $57-million.
He conducted what came to be known as the Krever Inquiry with relentless zeal and exhaustive attention to detail. The commission’s interim report was 485 pages; the final report 1,138 pages.
But the results were dramatic.
The iconic blood service of the Canadian Red Cross Society, which had begun as a patriotic wartime effort, collapsed under the weight of scandal and declared bankruptcy. (The Red Cross, even after it realized donor blood carried the deadly viruses HIV and hepatitis C, knowingly distributed contaminated blood and, until bitter end, refused to acknowledge its role and apologize.)
Class action lawsuits filed by victims, most against governments that shirked their duty to regulate the safety of the blood system, multiplied and eventually more than $4-billion was paid out to victims and their families.
Just as importantly, Canada’s drug-regulation regime was revamped from top to bottom, and a new agency, Canadian Blood Services, was created.
“Horace Krever fundamentally changed the health system for the better,” said Mike McCarthy, a former nurse who was infected with hepatitis C. “He cut through the hypocrisy of governments, the Red Cross and pharma companies and demanded they finally be accountable.”
But, to do so, Justice Krever mounted monumental battles. He vowed from Day 1 that every victim who wanted to testify could do so. He was sued by a number of parties after he vowed to name names of individuals, not just institutions, who had failed, a legal detour that caused long delays. Governments also repeatedly demanded that he cut the process short, but he never blinked.
After the tainted blood inquiry, Justice Krever returned to the Ontario Court of Appeal, but retired in 1999.
Beyond the voluminous official documents he produced, Mr. Krever was a man of few words, and reserved and modest to a fault.
He never once allowed a media outlet to write a profile of him. But Mr. Krever appeared as a character in the hit CBC mini-series Unspeakable, a lightly fictional take on the tainted blood tragedy, where he was portrayed by actor Matt Craven.
And he never commented publicly on the tainted blood inquiry, with one exception.
After he retired, Mr. Krever was openly critical of governments for failing to implement no-fault insurance programs for patients who were victims of medical errors, which was the number one recommendation of the tainted blood commission.
Mr. Krever received many awards during his distinguished career, including The Royal Society of Canada Centenary Medal in 1999 and, in 2010, the Law Society Medal, presented to an outstanding Ontario lawyer whose service reflects the highest ideals of the profession.
But he refused many others, including an honorary LLD doctorate from the Law Society of Ontario, arguing that the profession’s governing body did not have jurisdiction to do so. (Taking a principled stand on debate that goes back decades.)
Mr. Krever, who was pictured often in the media because of his high-profile roles, was the quintessential stone-faced, never-smiling judge who often spoke sternly.
But, in private, friends noted that he was extremely kind and had a wicked sense of humour. His judicial reserve melted away when he played with his grandchildren.
Mr. Krever is pre-deceased by his parents and his two brothers, Daniel and Elliot.
He is survived by his wife of 69 years, Elizabeth, his four children (Catherine, twins Susan and Barbara, and Bruce), as well as three grandchildren and a great-granddaughter.
In 2005, when his close friend, Samuel Grange, died, Mr. Krever said: “He was everything a judge should be: learned, wise, compassionate, patient and extraordinarily literate.”
Mr. Krever might as well have been describing himself, but would never be so immodest as to say so.
As per his wishes, there will be no funeral or memorial service.