What is the test for disclosing a material risk?

Ontario, Canada


The following excerpt is from Dent v. Lammens, 2004 CanLII 21046 (ON SC):

After discussion, the court in Reibl v. Hughes, supra, opted for an objective test, taking into account the particular circumstances of the patient. At p. 899-900 the Chief Justice says the following: “In saying that the test is based on the decision that a reasonable person in the patient’s position would have made, I should make it clear that the patient’s particular concerns must also be reasonably based; otherwise there would be more subjectivity than would be warranted under an objective test. Thus for example, fears, which are not related to the material risks, which should have been but were not disclosed, would not be causative factors. However economic considerations could reasonably go to causation where, for example, the loss of an eye as a result of non-disclosure of a material risk brings about the loss of a job for which good eyesight is required. In short, although account must be taken of the patient’s particular position, a position that will vary with the patient, it must be objectively assessed in terms of reasonableness.

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