Regulating public health risks: case studies of food allergens and transfusion transmissible infections.
Subject: Food allergy (Case studies)
Allergens (Case studies)
Health risk assessment (Case studies)
Public health (Case studies)
Author: Ries, Nola M.
Pub Date: 01/01/2011
Publication: Name: Health Law Journal Publisher: Health Law Institute Audience: Professional Format: Magazine/Journal Subject: Health; Law; Sports and fitness Copyright: COPYRIGHT 2011 Health Law Institute ISSN: 1192-8336
Issue: Date: Annual, 2011 Source Volume: 19
Product: Product Code: 8000120 Public Health Care; 9005200 Health Programs-Total Govt; 9105200 Health Programs NAICS Code: 62 Health Care and Social Assistance; 923 Administration of Human Resource Programs; 92312 Administration of Public Health Programs
Legal: Jurisdiction: Canada; International
Accession Number: 291893053
Full Text: I. Introduction

Organizations that have a responsibility for safeguarding the health of others perform a function as public health policy makers. Such organizations must identify, evaluate, and address, as appropriate, risks to the health of those to whom they owe legal and/or moral duties. These tasks require consideration of evidence--that is, what is known--about the potential health hazard, including: what is the likelihood the risk will materialize; how severe will the harm be if the risk materializes; how many people are in jeopardy of being harmed; what measures are available to prevent or mitigate the risk; and what are the costs and impacts of those measures? Public health decision makers must also weigh competing interests, particularly when risk management policies have the effect of imposing burdens on others.

This paper uses a case study approach to analyze how these public health decision-making issues are addressed in two policy domains--allergens in public places and blood safety. Specifically, the paper uses case studies to examine legal controversies in Canada concerning, first, the handling of food allergens in schools and on commercial aircraft, and second, the exclusion of blood donations from men who have sex with men. These case studies each present unique questions of risk assessment and management but they also raise high-level common issues. The focus of this paper is not on comparing the two case study contexts directly against one another, but rather the aim is to use these problems as a foundation for exploring broader issues and competing claims about public health risks, individual liberties, balancing of interests, and discrimination.

The paper begins by presenting the two case study contexts, which are areas of ongoing debate in Canada. The issue of handling food allergens in schools has been a matter of concern for school boards over the past decade and provincial legislators have considered the need for legislation mandating specific prevention and emergency preparedness actions. Recent court and tribunal decisions have been made in Canada concerning the management of allergens on commercial airliners and the exclusion of blood donors. The paper discusses complaints to the Canadian Transportation Agency (Agency) alleging a failure to provide appropriate accommodation to passengers with severe food allergies. (1) It also focuses on the Freeman v Canadian Blood Services litigation (2) in which a gay male blood donor argued that the permanent deferral of donations from men who have sex with men (MSM) violates rights to equality protected under section 15 of the Canadian Charter of Rights and Freedoms. (3) Legislative debate about school anaphylaxis legislation, the Agency rulings, and the Freeman decision provide insight into how public health risks and competing interests are characterized and addressed.

The paper next explores themes about public health risks and policymaking that emerge in these two case study contexts and examines the following issues: the influence of tragic events on public health decisions; criticisms about 'disproportionate' policy responses; addressing risks through blanket policies or case-by-case assessments; discrimination; balancing of competing interests; guidance from experts, and; the locus of control over a health hazard. The conclusion addresses the need for clear, proportionate, and consistently applied policies that are based on current evidence of risks and benefits.

II. The Case Studies

Case Study 1: Food Allergens in Public Places

Concerns have escalated over the past decade about a reported increase in the prevalence of food allergies, particularly among children. Common food triggers for allergic reactions include peanuts, tree nuts, cow milk, chicken eggs, fish, shellfish, wheat, and soy. (4) Health Canada reports that approximately five to six percent of Canadian children and three to four percent of adults have food allergies. (5) Some studies suggest that food allergies are becoming more common, but debate persists about whether rates have risen in real terms, or whether greater public awareness of allergies has led to more self-reports and demand for professional allergy testing. (6) In fact, rates of self-reported allergies are typically significantly higher than rates reported from allergy testing in clinical settings. (7)

Despite debate over the prevalence of food allergies, it is clear that organizations that offer services to the public, including schools and commercial airlines, must respond to the growing awareness of allergies and take steps to provide safe environments for persons with life-threatening allergies. Leo and Clark observe that "[w]ith the majority of children enrolled in either a childcare facility or school, the potential risk of a life threatening [allergic] reaction occurring in these venues has become a significant public health concern." (8) Behrmann points out that "[t]he presence of at least one food allergic student within a child care setting or school appears to be nearly inevitable." (9) He cites a U.S. survey of elementary schools in which 55% of schools reported having ten or more pupils with known allergies. (10) Moreover, it is estimated that over 60% of first-time allergic reactions occur while a child is at school. (11)

Data on allergic reactions among airline passengers is more limited. A 2008 survey of 471 persons with known food allergies who had travelled on commercial airlines found that around nine percent had experienced an allergic reaction during the flight. (12) Of those who had reactions, about half self-treated while on board (typically by taking an antihistamine) and just over a quarter notified a flight attendant about the reaction. Six passengers had reactions of sufficient severity that they attended an emergency department after landing. (13) Researchers working in this area state that "[i]n fairness to the overall scope of this problem, however, in-flight medical events are rare, occurring as frequently as 1 event per 753 flights, with allergic reactions accounting for 1.7% to 4.6% of all in-flight medical events." (14) Even if serious allergic reactions are relatively infrequent, the risk of experiencing such a reaction while flying can create an obstacle to mobility for passengers with allergies and give rise to a legal obligation on air carriers to provide suitable accommodation.

Schools and food allergens: Canadian policy responses

Approaches to managing food allergy risks in schools vary across the Canadian provinces and territories. Two provinces, Ontario and Manitoba, currently have legislation in force requiring school boards to develop policies for anaphylaxis (15) prevention and preparedness. Other jurisdictions have considered legislation, typically as private member's bills, but these have not been adopted. The most common response has been for provincial education departments and/or school boards to issue policies setting out procedures for creating safer environments for students with life-threatening allergies. Allergy and anaphylaxis advocacy groups, and organizations like the Canadian Association of Schools Boards, have also issued policies. The following section summarizes examples of legislative and policy responses across Canada and includes extracts from legislative debates to illustrate the discussion among elected officials.

In 2005, Ontario was the first province to pass legislation addressing life-threatening allergies within schools. The Act to Protect Anaphylactic Pupils, known as Sabrina's Law, (16) requires every school board in Ontario to establish and maintain an anaphylaxis policy, which must include strategies to reduce the risk of exposure, a plan for disseminating information on allergies, and regular training for employees to deal with life threatening allergies. The Act also requires that every school principal maintain a file and allergy plan on each anaphylactic student, including monitoring and avoidance strategies, and an appropriate treatment plan. Parents or guardians have an obligation to ensure the information on file is updated with any medication the student is taking. The Act also allows school board employees to administer an epinephrine auto-injector (EpiPen) or other prescribed medication if they believe a student is experiencing an anaphylactic reaction, even if not preauthorized to do so.

Sabrina's Law was introduced as a private member's bill and passed initial readings in the Ontario Legislative Assembly in late 2003. The member of provincial parliament (MPP) who initiated the bill, Dave Levac, acknowledged that a majority of Ontario school boards had adopted anaphylaxis policies, put pointed out a lack of consistency across the province in actual practices and preparedness to handle anaphylaxis events. (17)

Ontario's move to adopt legislation prompted some discussion in other provinces about the need for legislation. Manitoba passed anaphylaxis legislation in October 2008, making Manitoba the second province to have a law to protect students with life-threatening allergies. Bill 232, the Public Schools Amendment Act (Anaphylaxis Policy), requires that every school board must develop an anaphylaxis policy to meet the needs of pupils who have diagnosed anaphylaxis. (18)

In Alberta, in 2007, a member of the Legislative Assembly (MLA), Hugh MacDonald, urged the Minister of Education to develop legislation like Sabrina's Law to ensure that a minimum policy standard exists across the province. A year earlier, the provincial government had created an advisory committee to study the issue of anaphylaxis in schools; however, the province opted not to mandate legislative requirements. In 2010, Mr. MacDonald introduced Motion 504, an Anaphylaxis Policy for Schools, (19) stressing there is no legislation in Alberta to ensure common school board policy standards across the province to protect students from life-threatening allergies. He stated that such allergies appear to be on the rise in Western countries, but also noted that the causes of any apparent rise have not been clearly identified. (20) He specifically cited the death of Sabrina Shannon in Ontario as an example of a tragedy to be averted. (21)

Another MLA argued against imposing legislative requirements, asserting that legislation will not allow for the flexibility for schools to be responsive to meet student needs as they arise. In addition, school principals may become less vigilant, as they may feel that the problem has been dealt with through legislation. He also raised a concern with excessive use of legislation; if legislation is adopted to address food allergens, he asked:

To date, the Alberta government has not adopted anaphylaxis-specific legislative provisions, but the provincial School Act imposes a general obligation on school boards to "ensure that each student enrolled in a school operated by the board is provided with a sale and caring environment." (23)

In 2007, the British Columbia Ministry of Education issued the Anaphylaxis Protection Order to address the issue of anaphylactic conditions in schools. The Order requires that every school board establish and maintain policies and procedures relating to anaphylaxis, including a process for identifying anaphylactic students, a process for keeping a record of information relating to the specific allergies for each identified student, an education plan for anaphylactic students and parents to encourage the use of Medic-Alert identification, and procedures for storing and administering medication. Every board must also establish a training strategy with information relating to the signs and symptoms of anaphylaxis, common allergens, avoidance strategies, emergency protocols, how to use an EpiPen, identification of at-risk students, and emergency plans to address anaphylaxis. Also in 2007, the British Columbia Ministry of Education established the British Columbia Anaphylactic and Child Safety Framework to provide school boards with a broad overview of the key elements required in district policy, procedures, and guidelines and the board level to ensure appropriate and consistent management of anaphylaxis in the school setting and throughout the education system.

A draft bill modeled on Ontario's statute, Bill M210 Anaphylactic Student Protection Act, was proposed in British Columbia in 2007. (24) Sabrina Shannon's death was cited in legislative debate regarding the bill (25) and a week after the bill was introduced in the British Columbia Legislature, a 13-year-old schoolgirl died from an anaphylactic reaction after eating food purchased in a shopping mall. (26) The legislation did not proceed, however, with one MLA expressing concern about whether legislation is necessary, especially when relevant policy tools are already in existence: "Prescriptive legislation, by definition, will not necessarily keep our students safe. Simply passing a law doesn't guarantee compliance or enforcement, particularly when we are looking at things like increasing awareness and establishing consistency right across the board." (27)

In Nova Scotia, a private member's bill, the Life-Threatening Illness Student Support Act, was introduced in the Legislature in 2008, 2009 and 2010 but did not proceed beyond first reading, and has been introduced in 2011. (28) The bill proposed that the Minister of Education establish a life-threatening illness policy in schools that would address strategies to reduce risks, a communication plan for the dissemination of information to parents, students, and employees, a strategy to train staff on how to deal with life-threatening illnesses, (29) the development of an individual plan for each identified student, and the requirement that the principal maintain a file on each identified student. The individual plan would include an emergency procedure and guidelines for the storage of medication. The bill allowed a school employee to administer medication, including an EpiPen, prescribed for the treatment of a life-threatening reaction without pre-authorization if they believe a student is experiencing a life-threatening reaction.

Other jurisdictions have adopted policies that echo the requirements set out in legislation in Ontario and Manitoba. For example, provincial education ministries in New Brunswick (30) and Prince Edward Island (31) have policies setting out schools' responsibilities concerning students with life-threatening allergies. The policies address topics such as collection of health information about at-risk students, staff training on EpiPen administration and emergency response, and measures for restricting identified allergens. In Quebec, the Association quebecoise des allergies alimentaires has published guidance on anaphylaxis management (32) and each school board develops its own protocol in accordance with the guidance document. These protocols describe the roles of school administrators, teachers, parents, and students in regard to mitigating allergy risks and treating anaphylaxis when such situations occur.

Across Canada, the management of food allergens in schools has been a matter of debate in legislatures, education departments, and school boards. As discussed later, certain school responses have met with backlash, as some stakeholders argue that restrictive measures, such as bans on food products like peanuts, are both burdensome on families unaffected by allergies and an ineffective way to protect children with allergies.

Airlines and food allergens

In addition to attendance at schools, travel on commercial airlines is another venue where persons with allergies may experience exposure to foods that trigger a reaction. This section discusses complaints against a major Canadian air carrier, Air Canada, concerning their measures for addressing nut allergies. Concern has also been expressed about transportation of pets in passenger cabins and risks to travellers with allergies to animal dander. (33) This issue is not addressed here, however, complaints about exposure to cat dander allergens on aircraft are before the Agency. (34)

The Canada Transportation Act (CTA), Part V, addresses the transportation of persons with disabilities within the federally regulated transport network and aims to eliminate "undue obstacles" to mobility. (35) In 2010, the Agency released decisions concerning complaints against Air Canada by two passengers with peanut allergies. Although Air Canada does not serve peanuts, other nuts, including cashews and almonds, are included in the food catering options. The airline cautions that it does not guarantee that food items served on board are free of peanut traces, since it receives packaged snacks and prepared meals from multiple catering companies. Air Canada also states that it is not responsible for passengers who may bring on board foods containing peanuts.

The complaints were filed by Sophia Huyer and Rhonda Nugent on behalf of her daughter, Melanie Nugent. (36) Both claimants have peanut allergies and have received medical recommendations to avoid all nuts. For an international flight from Toronto to London in 2006, Ms. Huyer advised flight attendants of her nut allergy when she boarded the flight and requested that nuts not be served during the flight. As the catering supplies, including nut snacks, had already been loaded onto the aircraft, she was advised that her request could not be accommodated. Ultimately, Ms. Huyer was rebooked on a flight later that day and Air Canada removed nuts from the food service and made an announcement on the flight asking that passengers refrain from eating any foods containing nuts.

Prior to another international flight the following month, Ms. Huyer provided advance notice to Air Canada about her nut allergy. When she boarded the flight, however, she learned that nut snacks had been included in the catering service and it was too late to replace them with an alternate product. She did not wish to delay her travel and opted to remain aboard. The captain required her to sign a liability waiver releasing "Air Canada, the captain and his entire crew from any liability related to [her] ... extreme allergic response to nuts/nuts products." (37) She declined the option of sitting at the rear of the aircraft and chose to sequester herself in a washroom for 40 minutes during the period that nut snacks were being offered in the passenger cabin.

The Nugent complaint concerned the final, return flight segment of a family trip from Newfoundland to Florida in 2006. Melanie's parents informed Air Canada staff of their daughter's peanut allergy at the time of check-in and were satisfied with the accommodation provided, with the exception of their last flight. They were told that cashews would be served and that an announcement would not be made asking passengers to refrain from eating foods containing nuts. The family was given the option of being seated at the rear of the aircraft as a means of separating Melanie from the areas where cashews would be offered, but the family declined this option.

In addition to considering whether these two complainants experienced obstacles to their mobility due to a disability, the hearing tribunal also considered "the broader issue of ... the lack of a formal policy to accommodate persons who have an allergy to peanuts or nuts" (38) and the resulting variability in response from one flight to the next. A person with allergies may have a disability for CTA purposes and the Agency makes a determination on this issue on a case-by-case basis.

In the Huyer and Nugent complaints, the Agency found that the allergic conditions of these two passengers constitute a disability that impairs their mobility. The Agency ruled that a reasonable accommodation is for the airline to provide a buffer, of exclusion, zone for passengers with known and declared nut allergies. Specifically:

the Agency has determined that the appropriate accommodation for these travellers, when at least 48 hours advance notice is provided to Air Canada, is as follows:

* Air Canada will create a buffer zone for the passenger, in line with specific parameters set out in the decision. (39)

* Only peanut- and nut-free foods will be served by Air Canada within the buffer zone as part of its onboard snack or meal service.

* Personnel will brief passengers within the buffer zone that they can only eat foods that are peanut- and nut-free. (40)

The Agency rejected the claimants' submission that nuts should not be served anywhere in the aircraft cabin and that a public announcement should be made requesting all passengers to refrain from eating foods containing nuts. Following further submissions from Air Canada that it cannot guarantee that its catered foods are free of all nut traces, the Agency revised the requirement that only nut-free foods would be served in the buffer area: "within the buffer zone, Air Canada is required to serve only snacks and meals which do not contain peanuts or nuts as visible or known components." (41)

Case Study 2: The blood supply and transfusion transmissible infections

Canadian Blood Services (CBS) is the agency that collects and distributes blood and blood products for transfusion purposes throughout Canada (Quebec has its own blood agency, Hema-Quebec). Since 1988, CBS has required blood donors to complete a Donor Health Assessment Questionnaire to identify various risk factors for HIWAIDS, including, for men, the act of having sex with another man, "even once" since 1977. Donors who disclose any of the risk factors are deferred from blood donation and the duration of the deferral varies depending on the risk. Men who have had sex with another man at least once since 1977 are permanently deferred from donating blood. This deferral policy is consistent with policies in other jurisdictions, including the United States, Germany, France, and the Netherlands. Several countries have time-limited deferral periods, such as Australia, Japan (donors must have abstained from sex with a man in 12 months prior to donation), South Africa, and New Zealand (five years). (42) Most recently, in autumn 2011, the UK Department of Health lifted its permanent deferral policy and introduced a one-year deferral for MSM. (43)

The CBS deferral policy has been subject to criticism, with some contending that the exclusion unfairly discriminates against gay men. This argument was central to legal action involving a 38-year-old man, Kyle Freeman, who revealed to CBS that he had donated blood numerous times without answering truthfully the questions about sexual activity with men. (44) He donated blood for the first time at a blood donor clinic held at his high school, a period during which he had started engaging in sexual activities with male partners. He was a regular donor from 1998 to 2002.

In June 2002, Mr. Freeman anonymously wrote to CBS from a non-identifying email account to express his view that the MSM deferral policy is "inappropriate, futile, and archaic" because it "excludes healthy donors and prejudges homosexuals." (45) Following a response from CBS explaining its rationale for the policy, Mr. Freeman, again writing anonymously, disclosed that he was a regular donor. CBS responded to instruct Mr. Freeman that he must cease and desist from donating blood and began taking steps to identify him. Mr. Freeman donated blood within days of these email exchanges with CBS. This donation tested positive for syphilis (Mr. Freeman was unaware of the infection) and he became permanently ineligible to donate blood.

CBS initiated a negligent misrepresentation claim against Mr. Freeman and he counter-claimed with a Charter action, arguing that the MSM deferral policy discriminates on the basis of sexual orientation contrary to section 15 of the Charter. In 2010, Aitken J of the Ontario Superior Court of Justice ruled in favour of CBS, awarding $10,000 in damages, and dismissed the Charter argument, determining that CBS is not subject to the Charter because it is a private corporation and its policy development and operational activities are not controlled by the government. (46) Although Aitken J concluded that the Charter was inapplicable for this reason, her judgment assesses the section 15 and section 1 arguments and she concluded, in obiter, that the CBS policy would fail the minimal impairment and proportionality criteria had the analysis proceeded that far.

The judgment addresses in detail issues of risk and the competing interests of two groups--MSM and blood recipients--both characterized as vulnerable groups in Canadian society. (47) A central issue in the s 1 Charter analysis was whether CBS could adopt a less stringent deferral period without experiencing an increase in donated blood infected with HIV and other transfusion-transmissible infections. The experts who testified all agreed that an MSM donor deferral policy is needed, but disagreed on the appropriate length of a deferral. (48) The Court heard expert evidence about policy options, including ten-, five-, and one-year deferral periods for MSM. A 2007 risk assessment report from the University of Ottawa, commissioned by CBS, concluded that a one-year deferral period would increase the incremental level of risk, but from the available evidence on the impact of a five- or ten-year deferral, it could not be determined that such a policy change would raise the risk. (49)

The safety standard established by CBS and Health Canada was key in considering the evidence put forward in support of and opposing a permanent ban on blood donations from MSM. Aitken J described the standard of safety as follows: "Health Canada considers blood safety to be the highest priority in its regulation of the blood supply system. Its stated goal is to make blood transfusion as sale as possible for Canadians. CBS has adopted this goal. It is consistent with the recommendations in the Krever Report, which identified blood safety as the paramount consideration for a national blood supply system." (50)

The policy option of moving to a one- or five-year deferral has been the subject of analysis in scientific literature and among blood agencies in other countries. A recent risk analysis concludes that "acceptance of MSM as blood donors after 1 or 5 years' abstinence may result in a postulated increase in risk that is so much smaller than the currently tolerated transfusion risk and so small in absolute terms that the ethical question of fairness to the MSM group justifies" (51) replacing permanent exclusion policies with time-limited deferrals. Most recently, the British Department of Health replaced its permanent deferral of MSM with a one-year deferral policy, effective November 2011. It based this decision on the findings of the Advisory Committee on the Safety of Blood, Tissues and Organs, which stated that current evidence "no longer support[s] the permanent exclusion of men who have had sex with men." (52) Modelling analyses cited by the expert committee have predicted that moving from a permanent deferral to a one-year deferral could result in, at worst, one additional HIV-positive blood donation every 21 years or, at best, one such donation every 455 years. (53) Even since this data was collected, the methods for testing donated blood for transfusion transmitted infections have become more sensitive, thus increasing the likelihood that any infected units will be caught before release into the health care system. (54)

It has also been pointed out that existing studies have only attempted to quantify the potential increase in risk if the deferral period is reduced, but no studies have examined whether a policy change, accompanied by public education initiatives to explain risk factors and deferral periods, might enhance safety by improving compliance with the deferral requirements. In fact, the move to a one-year deferral policy in Australia did not result in an increase in donation of HIV-infected blood and a study of the Australian experience "concluded that it was not the length of the deferral (1 vs 5 years), but the extent of noncompliance with the applied deferral, which determined the risk of collecting an HIV-positive unit." (55) A recent UK survey of MSM found that ten percent had donated blood in the past in non-compliance with the donor deferral policy. "[M]isunderstanding or perceived inequity of the rule" was cited as one explanation and the authors recommend that "[r]eplacing the lifetime MSM donor exclusion with one seen as fairer is likely to be welcomed by most gay, bisexual, and other men who have sex with men. Increased endorsement by the constituency in question might improve compliance rates, particularly among men who currently donate ineligibly owing to perceived discrimination." (56)

Blood agencies in other countries, including the United States, have recently re-examined their MSM donor deferral policies, highlighting the state of flux in this public health policy area. After an expert conference in 2010 "examining the scientific and societal implications of changing the ban," U.S. officials "vot[ed] to continue the lifetime deferral." (57) Sweden adopted a one-year deferral in 2010, and after moving from a ten- to five-year deferral in 2009, the New Zealand blood agency plans to review its policy again in 2013. In Canada, in response to the Freeman ruling, a CBS media release stated that "this judgment does not mark the end of Canadian Blood Services' efforts to refine its screening process" and the Chief Executive Officer remarked: "We will continue to work with stakeholders on all sides of this issue to find a solution that continues to place priority on patient safety, while minimizing the societal impact of our policies on certain groups." (58) Indeed, in October 2011, CBS announced it is committed "to re-examin[ing] this policy, with a view to reduce this lifetime exclusion to no less than five years and no longer than 10 years." (59) Any change to the deferral policy will require regulatory approval from Health Canada and CBS anticipates submitting a policy change request to Health Canada in March 2012.

III. Discussion

This section draws on the two different case studies to explore the following issues: the influence of tragic events on public health decisions; criticisms about disproportionate policy responses; addressing risks through blanket policies or case-by-case assessments; discrimination; balancing of competing interests; guidance from experts; and the locus of control over a health hazard.

The influence of pivotal events

High-profile events, particularly those that are viewed as scandals or tragedies, (60) may influence how health risks are addressed and can prompt legislators and policy-makers to adopt particular risk mitigation measures. The influence of a tragic event on law making is evident in the Province of Ontario's legislative response to the death of Sabrina Shannon--the legislation even bears her name, after the Private Member, Dave Levac, who introduced and advocated for the bill, sought permission from the child's mother to recognize her in this manner. Another MPP described the impact of the child's death on his colleague: "he has ... spoken ... many times about the incredible inspiration he has received from this tragic loss of a young life. I've been with him watching him pursue this legislation for a long, long time now. So Sabrina, no doubt, kept Dave Levac on track, kept him persevering, kept him committed and kept him tenacious about this bill being passed." (61) Upon passage of the bill, another MPP commented: "Sabrina, though gone, will live on through others and the effects this bill will have ... on the lives of many students." (62)

The experience of the contamination of Canada's blood supply with HIV and hepatitis C during the late 1970s and 1980s devastated "[p]ublic confidence in the safety and efficiency of the blood system" (63) and the subsequent recommendations of the Commission of Inquiry on the Blood System in Canada (the Krever Commission) sought to "reduce as much as possible the likelihood that another tragedy ... would happen again." (64) Indeed, the findings of the Krever Commission have had an enduring impact on blood service policies. Aitken J observes that blood system safety is paramount in the Krever Report: "[m]ore than anything else, the Krever Report emphasized that, when creating and operating a blood supply system, the principle of safety must transcend other principles and policies." (65) Further, "[a]s was clear from the Krever Report, Canadians expect their governments and their blood operators to make safety of the blood supply system a paramount consideration; there is no collective tolerance for any contamination of the blood supply." (66) She also noted the link between the MSM donor deferral policy and the history of contamination of the blood supply: "The overall objective of donor deferral policies ... is assuring a safe blood supply. No one can question the pressing and substantial nature of this objective--especially in light of the tainted blood tragedy." (67)

The experience of a tragedy may lead to a situation where public health decision-makers, including a judge adjudicating a legal claim about public health policy, cite collective societal agreement as the basis for a very low risk tolerance. In Freeman, Aitken J states: "this debate is occurring in the wider context of the protection of the safety of Canada's blood supply system after the tainted blood tragedy ... Canadians have decided that blood safety is to be the paramount consideration in the blood supply system; that does not leave room for any move in the direction of lessening safety standards." (68)

The experience of a tragedy may also influence views about the reasonableness of policy measures and the rationality of fears. If a tragedy or scandal has not occurred, it may seem unreasonable and onerous to mandate that organizations must implement policies and procedures to mitigate a public health risk. Once that risk has materialized, however, especially on a large scale like the contamination of the blood supply, attitudes often change, as is evident in the following statement from the Freeman decision: "In the wake of the tainted blood tragedy, and continuing, though rare, reports of instances of contamination, such a fear is not irrational." (69)

While these comments from Freeman focus on the role of past tragedy in justifying safety standards and fears of contamination, other commentators consider a negative side of the legacy of the tainted blood scandal. A prominent American bioethicist argues that "[t]he history of the devastation of those suffering from hemophilia in the United States by HIV is the core reason why the current policy banning gay men has not changed despite huge advances in testing technology." (70) A high safety standard is clearly necessary to protect recipients of blood products, but this point warns against allowing tragedies of the past to delay policy changes that are supported by current evidence of safety. In a 2011 commentary, Leiss also emphasizes this point:

Tragic events can also inappropriately impel officials to use their most authoritative or prescriptive powers. During the period when the proposed Anaphylactic Student Protection Act was introduced in the British Columbia Legislature, a 13-year-old girl died from an anaphylactic reaction after eating food purchased at a food outlet in a shopping mall. Her EpiPen had been left in her school locker. MLAs in favour of the bill cited this tragedy as underscoring the need for legislation. In contrast, another Member suggested that a tragic event may lead to a false conclusion that legislation is the solution: "I think it's natural, when we're dealing with a response to a child death, that our reaction brings us to the highest level of action that we can take in this House, which is legislation. It's a natural reaction." But she cautioned that legislation is not necessarily the best response:

Critiques of disproportionate public health responses

The policy and legal measures to manage food allergens and blood safety have been publicly criticized as over-reactions, with some critics going so far as to describe responses to certain foods in schools as a form of hysteria. Measures to restrict peanuts and peanut butter have been a particular target of criticism. For example, a 2009 article in Chatelaine magazine, a widely read women's magazine in Canada, was titled "It's Just Nuts" and opened with the assertion that "[a] cross the country, parents and schools are cowering in fear of the tiny peanut." (73) The author argued that the perceived hazards of food allergies are exaggerated, asserting that being killed by a lightning strike is more likely than dying from anaphylaxis: "The only available figures [about anaphylaxis risk] come from Ontario, where allergists researching fatalities gathered information from coroner's offices and found that 32 adults and children died from food allergies between 1986 and 2000. In the same time frame, more Ontarians were killed by lightning." (74)

In 2008, Harper's magazine published a commentary decrying "the exaggerated threat of food allergies". (75) The author argued that "the rash of fatal food allergies is mostly myth, a cultural hysteria cooked up with a few ingredients: fearful parents in an age of increased anxiety, sensationalist news coverage and a coterie of well-placed advocates whose dubious science has red the frenzy." (76) The author acknowledged that "[t]here is no question that food allergies are real", but suggested that "exaggerating the threat may actually do as much harm as the allergies themselves. The peril is now perceived as so great that psychosomatic reactions to foods and their odors are not uncommon." (77)

Dr. Nicholas Christakis, a Harvard medical sociologist, wrote a 2008 article in the British Medical Journal, with the headline: "This allergies hysteria is just nuts--A crackdown on nuts is making things worse in a cycle of overreaction and increasing sensitisation". (78) He described a situation where children were ushered off a school bus after an errant peanut was seen rolling around on the floor. He writes that school responses have "the hallmarks of mass psychogenic illness" and put "otherwise healthy people in a cascade of anxiety." (79) He also wrote:

While some critics decry bans on peanuts as 'hysteria', the MSM blood donor deferral rule is challenged as homophobic and discriminatory. One critic of permanent deferral policies observes: "One group of US residents has a HIV prevalence 17 times that of their comparator: black versus white women. Yet there is no call for a lifetime ban on that demographic group from donating blood. Why? It is because we are more sensitised to racism than to homophobia." (81) Klugman argues that the MSM ban is an example of moral panic: "A panic links one suspect thing with one definitely bad thing, which gives the message that the suspect thing must actually be bad ... the blood industry seems to lump MSM in with other at-risk populations, conflating the danger and the discrimination." (82) Other risk populations for blood donations include persons from certain African countries, injection drug users, and sex trade workers. Klugman continues the argument: "By lumping these groups together, the [blood agency] implies that being born in certain places or being an MSM makes one the same as drug abusers and prostitutes, two populations that are highly stigmatized and despised in the United States." (83)

People who believe the MSM donor exclusion is a disproportionate and discriminatory policy response may express their opposition by choosing not to donate blood and withdrawing support for blood donation campaigns. For example, at some Canadian universities, student union associations have elected to exclude mobile blood donor clinics from the campus as a protest against the MSM policy. (84) To the extent that such reactions diminish the available pool of blood donors, blood supply agencies must weigh the tradeoffs involved and consider which course of policy action achieves desired levels of safety and donation rates. (85)

The basis of the Charter claim in the Freeman case is that the policy is a disproportionate and discriminatory response to the risk. Aitken J agreed that, had Mr. Freeman succeeded in arguing that the Charter applied to CBS, the permanent deferral policy would rail the s 1 analysis. While the court would give "considerable deference" (86) to CBS's insistence on not reducing safety standards, "[t]he problem is that CBS, and Canada, have very little scientific or other information to inform a choice as to what deferral policy is reasonably required" (87) to protect the blood supply. Moreover, "evidence was lacking of the existence of real concern that would make a deferral period of 33 years necessary in order to maintain the currently level of safety." (88) Aitken J thus concluded that the policy would not constitute a minimal impairment under s 1 if the Charter applied to CBS. (89)

Policy options--blanket policies or case-by-case measures

In the case studies under analysis, the organizations involved face choices about establishing a uniform (or blanket) policy to manage a health risk, engaging in case-by-case assessments, or using a combination of these approaches.

In provinces that have legislation aimed at protecting students with life-threatening allergies, school boards have a uniform obligation to comply with the statutory requirements. The legislation, however, sets out broad duties on boards to establish anaphylaxis policies that meet certain requirements (e.g., strategies to reduce exposure to allergens, training for staff) but individual boards have the discretion to tailor policies and plans to the specific needs of their student population. The backlash against schools has focused primarily on local responses (e.g., banning peanut butter sandwiches) rather than on the enactment of provincial laws that set out general requirements. Indeed, the school anaphylaxis legislation can be described as establishing "a minimum level of safety" (90) and does not, itself, prescribe bans or restrictions on specific potential food allergens.

The response to food allergens of the two major national airlines in Canada includes a uniform policy of not serving peanuts, but other accommodation occurs on a case-by-case basis. Air Canada adopted a uniform policy of phasing out peanuts from their packaged snack options, but other nuts may be part of the on-board snack and meal services. The airline warns, however, that it cannot guarantee that the food it serves is free of all traces of peanuts. WestJet does not offer any nut snacks, but likewise warns that it cannot guarantee that snacks are free of traces of nuts. As discussed earlier, the Agency requires airlines to provide reasonable accommodation to passengers with disabilities, but the Agency does not mandate specific restrictions regarding potential food allergens.

In the United States, the federal Department of Transportation, after a year of considering public input, declined to impose specific rules regarding the service of peanuts on commercial aircraft, leaving it to airlines to develop their own policies. Policies vary among U.S. carriers; some will suspend service of peanut snacks if an allergic passenger provides advance notice and others will serve peanuts, but provide a buffer area around the allergic passenger's seat. Submissions to the Department of Transportation contended that "a complete ban on peanuts and tree nuts would be the most direct solution but that this step is drastic in nature and impractical." (91)

Interestingly, a 1999 federal law in the U.S. stipulates that any regulations concerning peanut service on commercial aircraft may only be adopted following "submission to the Congress and the Secretary [of Transport] of a peer-reviewed scientific study that determines that there are severe reactions by passengers to peanuts as a result of contact with very small airborne peanut particles of the kind that passengers might encounter in an aircraft." (92) This legislative language sets a high bar: "severe reactions" to "very small airborne" particles. As such evidence is not currently available, the Department of Transportation is legally prohibited from mandating a peanut ban on commercial carriers.

The CBS policy is an example of a blanket policy that aims for a high level of safety for recipients of blood and blood products. As noted earlier, CBS has adopted Health Canada's goal of making blood transfusions as sale as possible for Canadians, in accordance with the Krever Report recommendations that identified blood safety as the paramount consideration in the regulation of the blood supply. (93)

Donor screening based on group characteristics, rather than individual assessment, is a common approach used by blood agencies: "Blood donor screening in Canada, and in most other developed countries, is conducted on a group basis in regard to the risk of transmission of a disease of which the prospective blood donor does not currently exhibit symptoms." (94) In the Freeman litigation, expert evidence was led to support an individualized assessment procedure that would rule out donors on the basis of more specific risk factors, rather than the blanket exclusion of any man who has had sex with another man since 1977. For example, one expert

This type of individual assessment would require detailed questionnaires that would ask donors to disclose accurately specific details of their sexual history. Experts who oppose this approach argue that a longer questionnaire would be more time-consuming, thus taking up more staff time and discouraging donors. Further, some donors may not be forthright in answering questions about intimate aspects of their sexual experiences. Individualized assessment may undermine the effectiveness of the donor screening process. In Freeman, evidence was cited from Spain and Italy showing that more infected blood was collected when agencies in those countries used individualized donor assessments. Aitken J ultimately rejected individualized assessment as being unworkable for blood agencies: "Requiring CBS to do a more individualized assessment of risk relating to HIV and other STIs [sexually transmitted infections] would be altering the entire system and structure of blood donor screening in the country." (96) Moreover, "an individualized approach would be different from that used in virtually all of the developed world, and could bring the Canadian blood supply system into disrepute." (97)

Interestingly, a 2011 British survey of MSM and their understanding of and compliance with blood donation rules revealed: "Of widespread concern was the 'blanket' nature of the ban and its failure to distinguish between lifestyles conferring different risk status." (98) Britain has now moved to a one-year deferral policy, still a blanket policy rather than a case-by-case assessment, but for a much shorter time period. In announcing the change, the National Health Service commented:

The issue of discrimination

The Freeman litigation squarely raises the issue of discrimination in how CBS has chosen to address the public health risk of certain blood-borne diseases entering the blood system. The complaints against Air Canada are also founded on discrimination concerns and dispute about measures that offer reasonable accommodation for travellers with disabilities. Discrimination claims have also been raised in relation to school responses. In Ontario, a mother of a boy with life-threatening allergies to peanuts, other nuts, eggs, and dairy, filed a complaint with the provincial Human Rights Tribunal 2009 alleging that the school's proposed accommodation plan did not go far enough in protecting the child. (100) The mother "wished the Board to prohibit all substances that might cause an anaphylactic reaction," (101) including restrictions on foods available in vending machines, at school events, and sold through school fundraising initiatives. As a result, the mother argued her son was being discriminated against on the basis of a disability in having his entry to junior kindergarten delayed. The mother sought an expedited hearing, but the Tribunal denied this request, determining that complex, expert evidence would be required for a full adjudication of the dispute "about the extent of the measures required to accommodate the applicant's allergies." (102) In 2007, parents of students in a Toronto of area elementary school initiated a human rights complaint arguing that the school had inappropriately relaxed its anaphylaxis protection measures. The school had a practice of asking parents to list the contents of their child's lunch on the outside of the lunch bag and teachers would inspect them to check for allergens. It eliminated this procedure "as it was considered onerous and expensive." (103) The complainants and the school negotiated a resolution that involved re-instating the inspections. (104) Parents of a young boy with allergies to milk and peanuts filed a human rights complaint in Manitoba after their daycare advised them to find alternate care arrangements for their child. The Board of the daycare had "determined that it was too stressful for staff and inconvenient for other children in the daycare to have [the boy] attend the facility." (105) It appears this matter was resolved without a hearing before the human rights tribunal.

In addition to discrimination claims arising from barriers to access to education (or other services, such as transportation in the case of airlines), discrimination issues may arise if children with allergies are singled out in inappropriate ways within the school system. In the United States, for example, the federal Rehabilitation Act

In Canada, legislation such as Sabrina's Law in Ontario does not have provisions addressing exclusionary treatment of children with allergies but parents may have recourse under provincial human rights legislation if a service provider, such as a school, denies the child a service on the basis of a disability.

Balancing of interests

Public health policy-making often involves balancing the interests of multiple stakeholder groups. In the context of food allergies, policy-makers must consider how to provide safer environments for persons with allergies (for example, students and airline passengers) while not excessively restricting the freedoms of persons without allergies. Parental interests much also be addressed when the situation involves children as the parents make choices on behalf of their children. Blood agencies must ensure the safety of blood supplies and protect blood recipients from transfusion transmissible infections. The interests of blood donors are also key, as without donors, blood systems could not exist. The case studies also require consideration of the types of risks and interests at stake and the extent to which they are analogous. In both case study contexts, one group faces a health risk (persons with allergies, recipients of blood products), while another group experiences some form of restriction on liberty. Policy options that may result in increased risks for the former group may offer a benefit to the latter group and the two sides of the scale may be difficult to compare. To illustrate, removing the permanent MSM blood donation deferral may eliminate one factor that contributes to negative stereotypes about gay and bisexual men, but it is challenging to value this benefit against a potential increase in health risks to people who receive donated blood products. Leiss and colleagues have described the problem: "Thus in this case the possible benefit to one group can only be obtained by imposing an increase in risk upon an entirely different group. Moreover, the benefit in question is of a qualitatively different kind from that of the risk; the two are incommensurable." (107)

To reduce risks for children with life-threatening food allergies, some parents have lobbied for bans on specific foods, particularly peanuts and other nuts, and some schools have adopted "nut-free" school policies. As discussed earlier, these restrictive policies have generated controversy. One U.S. scholar observes:

Parents of non-allergic children take offense in not being able to send their children to school with one of America's favorite lunch staples, the peanut butter and jelly sandwich. On the other hand, parents who live with the daily fear of anaphylactic shock advocate for peanut-free schools to protect their allergic children. Teachers, administrators, and school personnel are troubled by the possible [legal] repercussions ... a growing number of school principals and program administrators fear being sued ... or of being accused of discrimination against children disabled by a peanut allergy. School and program administrators are perplexed and apprehensive over the demands of both groups of parents (those with children who have allergies and those without). (108)

While the freedom to bring a peanut butter sandwich to school may seem trivial compared to the health interests of a child with a life-threatening allergy to peanuts, conflict has arisen among families and school personnel on this issue. (109) A recent editorial in a leading allergy journal advises:

Indeed, some parents argue that bans on peanut butter amount to more than a minor inconvenience. For children without allergies, peanut butter is a nutritious, palatable food and some situations have been reported where parents of a fussy eater say that peanut butter is among the few foods the child will eat. A mother in New York City started a petition opposing a nut ban: "[s]he believes that her child is being discriminated against because he only eats peanut butter." (111) The author of the controversial Chatelaine article mentioned earlier wrote that her "son is a picky eater ... [but] he does have a consistent passion for health-food store peanut butter on whole grain bread. The trouble is that I can't feed him that [in school lunches]." (112) The recent situation of a first grade girl with a life-threatening peanut allergy made headlines after parents of non-allergic children argued the girl should be home-schooled so other children and families do not bear the burden of accommodating her allergies. (113) 0ne father reportedly stated, "If I had a daughter who had a problem, I would not ask everyone else to change their lives to fit my life." (114)

Concerns about limiting the food choices of other students were raised in Committee hearings by a member of the Ontario Legislative Assembly. He described his own family's reaction when his child started at a new school that sent home a list of food children should not bring for lunch or snacks:

An Alberta MLA who advocated [or provincial legislation appeared mindful of balancing competing interests and emphasized that the aim of law-making was not to bah specific foods: "No one is saying that we're going to ban any kind of food or food product from a school or from a cafeteria or from a field trip. No one is saying that whatsoever." (116) This point was also made in legislative debate in British Columbia, where an MLA looked to Ontario for an example: "Sabrina's law does not call for the banning of products in schools. Rather, it is a more balanced approach that requires school boards to ensure that there are individual school-based plans for each student suffering from anaphylaxis, as well as policies to reduce exposure to causative agents." (117)

Nut-free school measures have also been criticized as increasing the risk to children with life-threatening allergies as the claim that a school is free of nuts may create a false sense of security. A focus on nut allergies may also detract from the concerns of children with food allergies that are less common. (118) There has been a focus on peanuts in schools and on airlines, but other foods, including cow milk and chicken eggs, also trigger allergies. Given the common use of these foods as ingredients, it is not feasible to propose that they, too, be eliminated. A member of the Manitoba legislative assembly commented on these issues in discussing the anaphylaxis law in that province: "This bill is not about banning anything. For one thing, there are so many different allergies, it would be impossible to ban every allergy, particularly food allergies that children in the school may be facing ... banning is not the answer because it can give people a false sense of security. " (119)

The Canadian Association of School Boards has commented directly on the need to balance interests of non-allergic and allergic students:

In contrast with the substantial discussion of balancing interests of allergic and non-allergic students in schools, the Agency decision in the Huyer and Nugent complaints touches only briefly on the interests of other passengers. This may reflect Air Canada's emphasis on producing evidence to show that any risks to passengers with allergies are mitigated by not serving peanuts (which are known to be a more common allergen) and the use of air filtration and exchange systems that provide high air quality. Thus, Air Canada did not appear to emphasize the interests of other passengers, but rather focused on its steps to accommodate those with allergies. The only explicit mention of inconvenience to other passengers occurred when Air Canada noted that, on one of Ms. Huyer's flights, "its caterer had, by chance, other snacks that were used to replace the almond service in business class, but this was at a cost to Air Canada and a disappointment to many of its customers who happen to like the almond snack. It served packaged snacks of a lower quality." (121)

The balancing of interests is clearly a key issue in the Freeman case. In particular, the interests of MSM as blood donors are characterized as 'special interests.' Aitken J stresses that blood donation is a privilege, not a right, and states in the opening paragraphs of her ruling that "[t]he law does not give anyone in Canada the right to donate blood." (122) Early in her judgment, Aitken J rejects special interests and underscores the need for evidence-based policies to ensure the safety of the blood supply: "I cannot let sympathy, public opinion or pressure from interested groups influence the outcome ... My judgment must be based on my best effort to apply the law ... to the facts that I find are supported by the evidence." (123)

Other commentators have framed the issue differently. For example, after concluding that a move to a five-year deferral policy would not increase blood safety risk above the level of already-tolerated risk, Vamvakas argues that the balancing question comes down to which of the following "positions is the most ethical one: not to tolerate a minimal risk to protect transfusion recipients or to tolerate a minimal risk to be fair to the MSM group." (124) The University of Ottawa expert report commissioned by CBS explicitly addressed issues of balancing and transferring risks. Based on the evidence available at the time the authors prepared their analysis, they concluded that "a shortening of the current MSM donor deferral period to 1 year would constitute a covert and unacceptable risk transfer from the male homosexual and bisexual community to the community of blood recipients. Such a transfer would be both unreasonable and unfair." (125)

Aitken J's reasoning reveals a broader characterization of the groups whose interests are in conflict. While the issue is typically framed as MSM blood donors on one side and blood recipients on the other, Aitken J also, at times, describes the second group more broadly than blood recipients, and refers to the "blood supply system", the "health care system" (126) and, in language that suggests a personal stake involving all Canadians, "our collective well-being." (127) Klugman's discussion of moral panic, noted earlier, is perhaps relevant here, too. He contends that blood donor deferral policies associate MSM with drug addicts and prostitutes and, in doing so, exacerbate stigma and moral condemnation. (128) By linking blood recipients, the health care system and "collective well-being", arguably the opposite effect may occur.

The guidance of experts

Both case studies demonstrate a clear need for expert guidance. All parties to the Freeman litigation concurred with the need to make decisions based on the best evidence: "No one at this trial debated that policy decisions in the area of blood donor screening and deferral must fundamentally be based on the best available research." The expert witnesses agreed that, statistically, MSM have a higher risk of infection with HIV. (129) While this fact is established as empirically true, disagreements arise in deciding the best policy to mitigate the risk that a male blood donor who has had sex with a man will contaminate the blood supply. The Freeman decision speaks explicitly of expert decision-making and, centrally, the importance of risk assessment decisions by experts over lay individuals: "We expect those with the most knowledge in a particular area impacting on our safety and security to be the ones setting the standards in that area. We do not expect individuals to be able to set their own standards when our collective well-being is at stake." (130)

Some commentary in policy-making regarding allergy prevention and preparedness in schools advocates for a 'caring parent' standard:

But the statements of some parents provide a counter to this suggestion. For example, a father of two children with severe allergies, and the chair of an anaphylaxis education group, gave evidence at an Ontario Standing Committee. He acknowledged a lack of objectivity and professional knowledge: "the safety of thousands of kids in Ontario shouldn't depend on ... individual parents and their personal and unprofessional knowledge ... it is a very emotional issue, and it is very hard to come in calmly and rationally." (132)

Putting oneself in the shoes of a person or family personally affected by a health risk was also raised in debate in the Alberta legislature. After one Conservative MLA, Doug Griffiths, spoke against legislation, a Liberal member replied, "I'm going to take a very personal approach to this motion. I'm going to suggest that if the hon. member's children suffered from these types of allergies and complications, he wouldn't have gotten up and made that statement." (133)

In the context of food allergies, an area of controversy about routes of exposure concerns the degree of risk posed by airborne exposure to allergens. This issue is central in the Agency analysis and arises also in discussions about appropriate responses to potential food allergens in schools. While some people raise concerns about allergic reactions from airborne particles, a recent summary of evidence regarding allergy risks states:

These authors thus argue that "[k]nowing the established evidence about the real versus perceived risks of reactions in educational settings is essential in school planning for children with food allergies." (135) Interestingly, in legislative debate about proposed anaphylaxis preparedness laws, some members make statements about sources of risk and the magnitude of the problem without reference to the evidentiary basis for such claims. For example, in regard to allergy triggers, a Manitoba MLA, Erin Selby, commented:

The Canadian Society of Allergy and Clinical Immunology (CSACI) has stated: "The potential risk of life threatening allergic reactions to airborne food particles such as peanut of shellfish is negligible. Presently we would not recommend a ban based on the risk of reactions from the inhalation route of exposure." (137)

The risk from airborne particles has also been a matter of debate in the context of airlines. One survey found that, of respondents who reported experiencing an allergic reaction to peanuts or tree nuts on board an airplane, 48% identified inhalation of allergic particles as the route of exposure, rather than oral ingestion. The authors point out that this self-reported finding is much higher than that presented in previously published studies and observe: "reactions might occur from unrecognized trace ingestion, and ate mistakenly attributed to non-oral routes of exposure. Also, anxiety-induced symptoms may result from visual cues rather than allergen exposure. Such misperception of non-oral routes of exposure could be contributing to an overestimation of the true prevalence of in-flight reactions." (138) Indeed, Air Canada led evidence before the Agency arguing that airborne exposure is of negligible risk. This evidence addressed allergy triggers--particularly the extent to which persons with allergies are at risk if other passengers consume nuts--and the effectiveness of air filtration and exchange systems. (139) The Agency accepted the evidence that "there is very little chance that airborne allergens will cause or trigger severe anaphylactic reactions" (140) and that oral ingestion from inadvertent cross-contamination is a matter of more concern.

Control over the hazard

As a final issue that merits brief analysis, competing views about risk identification and mitigation also raise the issue of how control over a potential health hazard may be exerted. The question of balance that arises here is the extent to which individuals can protect themselves from a hazard versus the extent to which they rely on institutions to implement protective safeguards. The two case studies involve layers of defense mechanisms, though the party that establishes and uses these layers differs. In the case of food allergies, it is predominantly the affected individual who uses various layers of defense (for example, eating food prepared themselves, reading package information for allergen information, asking questions about food preparation, carrying epinephrine). In the complaints against Air Canada, the airline emphasized that passengers bear the onus of self-protection: "if a passenger is allergic or sensitive to products that may be found in the aircraft cabin, it is the passenger's responsibility to bring the proper medication and to have the proper protection." (141)

In regard to allergies, distinctions are made on the basis of age; greater protection should arguably be made available for young children with allergies who have less experience in self-protection. For example, the CSACI does not generally advocate for restrictive policies that ban potential allergens from schools, but recommends more stringent approaches where very young children are involved: "In the nursery, day care setting and earlier public school grades where there are peanut allergic children no peanuts, peanut butter or peanut containing foods should be allowed, since it is extremely difficult to avoid accidental ingestion ... In the higher public school grades and high school settings complete avoidance policies while desirable may be impractical." (142)

In the blood donation context, the layers of defense are implemented at the system level, rather than at the level of individual blood recipients of donors. Indeed, recipients of blood and blood products must rely exclusively on measures that third parties take to ensure safety within the system. The blood service agency uses donor health screening, stringent testing, heating treating, and other measures, to reduce the risk that contaminated blood will enter the system.

IV. Conclusions

The case studies presented in this article involve known public health risks, that is, food allergies and transfusion transmissible infections. If the risk materializes, the consequences are potentially severe for an anaphylactic student or airline passenger who is exposed to a food allergen or a patient who may receive contaminated blood that enters the blood supply. The case studies also involve contexts where it is impossible to reduce the risk to zero. Competing views arise in how best to address the risks and whether the responsible organizations ought to enforce restrictive policies that cause, at a minimum, inconvenience, and, more gravely, discrimination and stigmatization.

The standard of safety selected by the public health policy maker is key to analyzing their options. The sectors examined here--a blood agency, schools, and airlines--reflect points along a safety spectrum. As discussed, CBS and Health Canada seek to reduce the risk of transfusion transmissible infections as much as possible. Those who oppose the MSM exclusion rule do not reject this high safety standard itself, but argue that measures less restrictive than a permanent donor deferral will achieve that standard. Schools and airlines also seek to provide sale environments for students and passengers, but with the limitation that neither space can be free of all potential food allergens. In the airline context, the experts who gave evidence before the Agency agreed "that it is impossible to create an allergy-free environment in the aircraft cabin." (143) In schools, claims of providing nut-free environments have been criticized as creating a false sense of security. As with airlines, a school cannot control all the food that comes onto the premises.

In Freeman, Aitken J quotes the Krever Report in stating that a "public health philosophy rejects a need for complete evidence about risk." (144) But those responsible for establishing policies must ensure their choices are based on up-to-date evidence and they should be cautious about perpetuating misinformation about risks that exacerbates stigma or stereotypes. In blood donation, the donor--that is, the person who does not bear the health risk--is the one for whom stigmatization and exclusion is a concern. In food allergies, it is the opposite: the person who bears the health risk may face stigmatization by being singled out and treated differently because of their medical condition. Literature on managing allergies in schools underscores the importance of not making children feel stigmatized--for example, by segregating them in one area of a lunchroom or cafeteria. (145) Interestingly, segregation via a 'buffer zone' is precisely the solution mandated as reasonable accommodation on commercial aircraft.

Proportionality of the response to the risk is key. Organizations that establish policies to address an identifiable risk to public health must ensure the policy response is proportionate to the risk. In her analysis of the CBS policy, Aitken J said that a small risk demands a proportionate policy response. This parallels the airline case: the risk to passengers with allergies is small, thus the Agency rejected measures it viewed as disproportionate accommodation, such as a ban on all nuts and public announcements asking passengers not to eat food they have brought on board if it contains nuts. Some schools have also rejected measures that are viewed as too onerous or intrusive.

In addition to attaining a proportionate response to the public health risk and balancing the interests of various stakeholders, organizations must ensure their policies are administratively workable. A uniform policy is often more easily administered than a policy that requires individual assessments and variation across organizational sites, though the latter may be less vulnerable to a charge of discrimination. (146)

Clear policies that are applied consistently are optimal. Variances in the application of policies are problematic in that persons who interact with and rely on service providers--such as airline passengers, blood donors, blood recipients, students, parents--face uncertainty in how risks will be managed. The complaints against Air Canada illustrate how passengers with allergies may receive variable treatment from one flight to the next. (147) MSM have reported confusion about deferral rules, suggesting that clearer communication is necessary. (148) Additionally, blood donors who are told they are ineligible to donate should receive "a clear explanation of the reasons why they are not acceptable as donor." (149) Inconsistent application of policies may also increase legal liability risks for organizations. Just as service providers should strive for proportional responses to risks, they should ensure that policies are applied consistently. All persons who interact with the service provider will know what to expect. Lastly, organizations must be responsive to new evidence and amend and update policies as appropriate over time.

(1) Decision No 4-AT-A-2010, "Applications by Sophia Huyer and Rhonda Nugent, on behalf of her daughter Melanie Nugent, against Air Canada regarding difficulties they experienced relating to peanut and nut allergies", Canadian Transportation Agency (6 January 2010), online: Canadian Transportation Agency [Decision No 4-AT-A-2010]. See also Decision No 431-AT-A-2010, "Applications by Dr. Sophia Huyer and Rhonda Nugent, on behalf of her daughter Melanie Nugent, against Air Canada", Canadian Transportation Agency (19 October 2010)), online: Canadian Transportation Agency [Decision No 431-AT-A-2010] and Decision No 228-AT-A-2011, "Applications by Dr. Sophia Huyer and Rhonda Nugent, on behalf of her daughter Melanie Nugent, against Air Canada", Canadian Transportation Agency (16 June 2011), online: Canadian Transportation Agency [Decision No 228-AT-A-2011].

(2) Canadian Blood Services v Freeman, 2010 ONSC 4885 [Freeman].

(3) Part I of the Constitution Act, 1982, being Schedule b to the Canada Act, 1982 (UK), 1982, c 11.

(4) These account for an estimated 90% of food allergies. See data summarized in Amy M Branum & Susan L Lukacs, "Food Allergy Among U.S. Children: Trends in Prevalence and Hospitalizations" (2008) 10 NCHS Data Brief, online: Centers for Disease Control and Prevention .

(5) Health Canada, News Release, 2011-23, "Harper Government Strengthens Food Allergen Labelling Regulations" (14 February 2011) online: Health Canada . A national Canadian survey conducted in 2008 and 2009 reported the following probable rates of food allergies: 0.93% peanut allergy; 1.14% tree nut; 0.48% fish; 1.42% shellfish; and 0.09% sesame. Moshe Ben-Shoshan et al, "A Population-based Study on Peanut, Tree Nut, Fish, Shellfish, and Sesame Allergy Prevalence in Canada" (2010) 125:6 Journal of Allergy and Clinical Immunology 1327. Self-reported allergies were slightly higher than the probable allergy rates. Researchers have also collected self-reported data from Canadians on milk, egg, and wheat allergies (2.09%, 0.8%, and 0.77%, respectively) but caution that the "unusually high prevalence of milk and wheat allergy in adults is not consistent with the literature, and may be due to participant confusion with lactose intolerance and celiac disease." See Lianne Soller et al, "Estimating the Prevalence of Milk, Egg, and Wheat Allergies in the Canadian Population" (2010) 6:Supp 3 Allergy, Asthma & Clinical Immunology P37 at P37.

(6) Moshe Ben-Shoshan et al, "Is the Prevalence of Peanut Allergy Increasing? A 5-year Follow-up Study in Children in Montreal" (2009) 123:4 Journal of Allergy and Clinical Immunology 783. This study of Montreal schoolchildren found that rates of peanut allergy remained stable over 2000 to 2007 (ibid).

(7) Roberto J Rona et al, "The Prevalence of Food Allergy: A Meta-Analysis" (2007) 120:3 Journal of Allergy and Clinical Immunology 638.

(8) Harvey L Leo & Noreen M Clark, "Managing Children With Food Allergies in Childcare and School" (2007) 7 Current Allergy and Asthma Reports 187 at 187.

(9) Jason Behrmann, "Ethical Principles as a Guide in Implementing Policies for the Management of Food Allergies in Schools" (2010) 26 Journal of School Nursing 183 at 184.

(10) Ibid, citing GS Rhim & MS McMorris, "School Readiness for Children with Food Allergies" (2001) 86 Annals of Allergy, Asthma & Immunology 172.

(11) Leo & Clark, supra note 8 at 187.

(12) Sarah S Comstock et al, "Allergic Reactions to Peanuts, Tree Nuts, and Seeds Aboard Commercial Airliners" (2008) 101 Annals of Allergy, Asthma & Immunology 51.

(13) Another survey studied experiences of persons with peanut and tree nut allergies who reported having allergic reactions during commercial flights in the United States. These results were published as a letter to the editor. Matthew J Greenhawt, Marc S McMorris & Terence J Furlong, "Self-reported Allergic Reactions to Peanuts and Tree Nuts Occurring on Commercial Airlines" (2009) 124:3 Journal of Allergy and Clinical Immunology 598.

(14) Greenhawt, McMorris & Furlong, ibid.

(15) The term 'anaphylaxis' refers to a severe allergic reaction that can progress quickly, affecting major systems of the body, and can be fatal if not treated urgently.

(16) Sabrina's Law, 2005, SO 2005, c 7.

(17) For instance, Mr. Levac noted that not all public schools provide EpiPen instruction and stated that it is often up to parents to provide this training. In Ontario, legislative discussion of anaphylaxis management in schools dates back to the mid-1990s. In 1996, a MPP questioned what steps the Minister of Education was taking to address anaphylaxis in schools and noted that a Scarborough student had died of an acute food reaction two years earlier. It was also indicated that parents have been calling for the introduction of EpiPens in classrooms and on school field trips. The Minister, then Hon. J. Snobelen, responded that the ministry had sent recommendations from the Anaphylaxis Task Force, the Canadian Society of Allergy and Clinical Immunology, and the Allergy Asthma Information Association to every school board across the province to support them in developing anaphylaxis programs and policies.

(18) Bill 232, Public Schools Amendment Act (Anaphylaxis Policies), 2nd Sess, 39th Leg, Manitoba, 2008, now enacted as s 47.3 of Public Schools Act, CCSM c P250.

(19) Alberta, Legislative Assembly, Hansard, 27thLeg, 3rd Sess, No 17 (15 March 2010) at 467. The text of Motion 504 is as follows:

(20) Ibid at 468. MLA MacDonald stated: "These life-threatening allergies appear to be on the rise in western cultures. There are some experts that speculate that this is due to improved hygienic standards. Now, I can't say whether that's fact or whether it's fiction, but certainly it is interesting" (ibid).

(21) Ibid ("[i]n Ontario in 2003 a 13-year-old girl named Sabrina Shannon unknowingly ate french fries from the school cafeteria that had been contaminated with a dairy product. Sabrina went into shock and passed away before school staff could give her a dose from her EpiPen, which was stored in her locker" at 468).

(22) Ibid at 469 (Doug Griffiths).

(23) School Act, RSA 2000, c S-3, s 45(8).

(24) Bill M 210, Anaphylactic Student Protection Act, 2007, 3rd Sess, 38 Leg, British Columbia, 2007. David Cubberley, the MLA who introduced the bill, commented: "This bill is modelled on Sabrina's Law adopted in Ontario after Sabrina Shannon died from inadvertently consuming fries that were likely contaminated with a dairy protein, to which she was highly allergic." British Columbia, Legislative Assembly, Official Report of the Debates of the Legislative Assembly, 38th Parl, 3rd Sess, No 17 (28 March 2007) at 6531 (David Cubberley).

(25) In introducing a proposed Act, a member of the British Columbia Legislative Assembly stated: "There is also a legislative option [to address anaphylaxis in schools]. In 2005 Ontario adopted Sabrina's law, named after a young girl, Sabrina Shannon, who died at the age of 13 after eating french fries that were accidentally cross-contaminated with cheese in a school kitchen." British Columbia, Legislative Assembly, Official Report of the Debates of the Legislative Assembly, 38th Parl, 3rd Sess, No 17 (27 March 2007) at 6471 (Shane Simpson).

(26) British Columbia, Legislative Assembly, Official Report of the Debates of the Legislative Assembly, 38th Parl, 3rd Sess, No 21 (28 May 2007) at 8220 (David Cubberley): "A week after I introduced this bill to the House, young Carley Kohnen of Victoria died in a direct parallel of the events that claimed Sabrina Shannon's life.... Like Sabrina, she asked about the food before eating it. But she was inadvertently given inaccurate information. Shortly afterwards a fatal reaction set in, and like Sabrina's, her EpiPen sat in her locker at school unused and unavailable.... I believe we can honour young Carley's life by passing the bill that's before this House"

(27) Ibid at 8221 (J McIntyre).

(28) See Bill 206, Life-threatening Illness Student Support Act, 2nd Sess, 60th Leg, Nova Scotia, 2008; Bill 19, Life-threatening Illness Student Support Act, 1st Sess, 61st Leg, Nova Scotia, 2009; Bill 12, Life-threatening Illness Student Support Act, 2nd Sess, 61st Leg, Nova Scotia, 2010; and Bill 75, Life-threatening Illness Student Support Act, 3rd Sess, 61st Leg, Nova Scotia, 2011.

(29) Defined as "a condition that could lead to death when left untreated or improperly treated".

(30) New Brunswick, Department of Education, Policy 704, Health Support Services, (Fredericton: Department of Education, 2008), online: New Brunswick Department of Education . See in particular 6.6.1, "Life-Threatening Allergies--Risk of Anaphylaxis".

(31) Prince Edward Island, Department of Education and Early Childhood Development, Minister's Directive No MD 2008-06, Procedures for Dealing with Life-threatening Allergies (Summerside: Department of Education and Early Childhood Development, 2008), online: Department of Education and Early Childhood Development .

(32) Association quebecoise des allergies alimentaires, L'Anaphylaxie a l'ecole et dans d'autres milieux, 2e ed (St-Leonard, Quebec: Association quebecoise des allergies alimentaires, 2005).

(33) For commentary on this issue, see e.g. Matthew B Stanbrook, Thomas Kovesi & Paul C Hebert, "Pets in Airplane Cabins: An Unnecessary Allergic Hazard" (2010) 182:5 Canadian Medical Association Journal 421. In August 2011, the Canadian Medical Association debated a motion calling on airlines to cease transporting animals in the passenger cabin, with the exception of assistance animals for persons with disabilities. See Roger Collier, "Pack Pooches in the Cargo Hold, CMA says" (2011) 183 Canadian Medical Association Journal E999.

(34) Decision No 66-AT-A-2010, "Applications by Katherine Covell and Sarah Daviau against Air Canada and ah application by Dr. J. David Spence against Air Canada, Air Canada Jazz and WestJet", Canadian Transportation Agency (25 February 2010), online: Canadian Transportation Agency .

(35) SC 1996, c 10, ss 170-172 [CTA].

(36) Supra note 1.

(37) Ibid at para 15.

(38) Ibid at para 4.

(39) The Agency provided guidance on appropriate buffer zones for different areas of aircraft in Air Canada's fleet (e.g. business class cabin, economy cabin).

(40) Canadian Transportation Agency, News Release, "Direction provided to Air Canada on accommodating travellers with peanut of nut allergies" (19 October 2010) online: Canadian Transportation Agency .

(41) Canadian Transportation Agency, News Release, "Direction provided to Air Canada to accommodate travellers disabled by peanut or nut allergies (16 June 2011), online: Canadian Transportation Agency [emphasis added].

(42) For a sumrnary of deferral policies from other countries, see National Health Service (UK), "Frequently Asked Questions: What are the donor selection criteria for MSM in other countries?" online: National Health Service .

(43) National Health Service, News Release, "Blood donor ban lifted for men who have sex with men" (9 September 2011) online: National Health Service .

(44) Freeman, supra note 2.

(45) Ibid at para 204.

(46) On the s 32 Charter analysis, Aitken J concluded: "CBS is an autonomous private corporation whose governance structure does not include government control. The fact that it performs an important public function, its activities are highly regulated by the federal government, and it is funded in great measure by the provincial and territorial governments does not mean that CBS is a governmental entity for the purposes of s. 32", ibid at para 343.

(47) See ibid at para 28: "The policy of CBS that prevents MSM from donating blood impacts on two vulnerable groups in Canadian society: blood and blood product recipients and gay and bisexual men."

(48) The expert evidence concerning donor deferral periods is summarized at paragraphs 279-296 of the decision, ibid.

(49) William Leiss, Michael Tyshenko & Dan Krewski, MSM Donor Deferral Risk Assessment: Ah Analysis using Risk Management Principles: A Report for Canadian Blood Services (Ottawa: McLaughlin Centre for Population Health Risk Assessment, University of Ottawa, 2007) online: William Leiss ["University of Ottawa report"]. The findings were subsequently published in peer-reviewed scientific literature. See William Leiss, Michael Tyshenko & Daniel Krewski, "Men Having Sex With Men Donor Deferral Risk Assessment: An Analysis Using Risk Management Principles" (2008) 22:1 Transfusion Medicine Reviews 35. In a review of evidence that has become available since the preparation of the 2007 report, the lead author published a 2011 commentary arguing in support of a five-year deferral. He notes that blood testing technology has become increasingly sensitive at detecting infectious agents and argues that "a 5-year deferral could be implemented without increasing residual risk. Once further evidence had been accumulated as a result of that policy change, one could be in a position to move more confidently to a 1-year deferral period or to some other appropriate policy choice." William Leiss, "Catastrophic Failures in Risk Management, 3: Blood Donation Risk and Gay Men" (2011) [unpublished], online: William Leiss at 2Catastrophic Failures"].

(50) Freeman, supra note 2 at para 525.

(51) Eleftherios C Vamvakas, "Relative Risk of Reducing the Lifetime Blood Donation Deferral for Men Who Have Had Sex With Men Versus Currently Tolerated Transfusion Risks" (2011) 25:1 Transfusion Medicine Reviews 47 at 47 [Vamvakas, "Relative Risk"].

(52) UK, Department of Health, Advisory Committee on the Safety of Blood, Tissues and Organs, Donor Selection Criteria Review (London: Department of Health, 2011) online: Department of Health .

(53) Ibid at 47.

(54) A 2009 study determined that nucleic acid testing, a highly sensitive technique, would fail to detect infected blood one time in ten million. See Eleftherios C. Vamvakas, "Scientific Background on the Risk Engendered by Reducing the Lifetime Blood Donation Deferral Period for Men who have Sex with Men" (2009) 23:2 Transfusion Medicine Reviews 85.

(55) Vamvakas, "Relative Risk", supra note 51 at 57, citing Clive R Seed et al, "No Evidence of a Significantly Increased Risk of Transfusion Transmitted Human Immunodeficiency Virus Infection in Australia Subsequent to Implementing a 12-Month Deferral for Men who have had Sex with Men" (2010) 50:12 Transfusion 2722. In the Australian study, five HIV-positive, MSM donors were identified through blood testing, but all five had had MSM sexual activity within the previous year, so donated in contravention of the 12-month deferral rule.

(56) P Grenfell et al, "Views and Experiences of Men who have Sex with Men on the Ban on Blood Donation: A Cross Sectional Survey with Qualitative Interviews", online: (2011) 343 British Medical Journal d5604 at 5 .

(57) Jay P Brooks, "Blood Donation in Men who have Sex with Men" (2011) 343 British Medical Journal d6040 at d6041.

(58) Canadian Blood Services, Media Release, "Canadian Blood Services' CEO Gives Initial Reaction to Ontario Superior Court MSM Ruling" (9 September 2010) online: Canadian Blood Services "

(59) Canadian Blood Services, Web Statement, "Canadian Blood Services Policy on Excluding Men Who Have Had Sex with Men (MSM) from Donating Blood" (19 October 2011) online: Canadian Blood Services .

(60) Debate may arise as to whether descriptions of particular events as tragedies of scandals is accurate or hyperbole, and different interest groups may wish to hype or downplay events, but analysis of this issue is outside the scope of this paper.

(61) Ontario, Legislative Assembly, Official Reports of Debates (Hansard), 38th Parl, 1st Sess, (4 May 2005) at G-1032 (Peter Kormos)..

(62) Ibid at G-1033 (John Yakabuski).

(63) Freeman, supra note 2 at para 26.

(64) Ibid.

(65) Ibid at para 27.

(66) Ibid at para 512.

(67) Ibid at para 508.

(68) Ibid at para 526 [emphasis added].

(69) Ibid at para 592.

(70) Arthur Caplan, "Blood Stains: Why an Absurd Policy Banning Gay Men as Blood Donors Has Not Been Changed" (2010) 10:2 American Journal of Bioethics 1 at2.

(71) Leiss, "Catastrophic Failures", supra note 49 at 4.

(72) Supra note 26 at 8224-8225 (Mary Polak).

(73) Patricia Pearson, "It's Just Nuts" Chatelaine (December 2009) 129.

(74) Ibid at 130. The article generated strong opposition and the magazine's editor was replaced shortly after the article was published, generating speculation that "what did [the editor] in was a recent piece ... titled 'It's just nuts,' which enraged parents by questioning whether allergy-based food bans in schools have gone too far." See Adam McDowell, "Chatelaine sheds yet another editor", National Post (30 November 2009). For examples of critical responses to the article, see e.g. Gwen Smith, "What's nuts, Chatelaine, is not to be concerned", CBC News (10 November 2009) online: CBC . The author wrote: "[w]hen the top women's magazine in the country takes a snide, cynical run at a serious health issue that affects children, these are truly different times in the publishing industry. The magazine is Chatelaine, and the hit-and-run article in its December issue is called 'It's Just Nuts.' ... [It is disturbing] that this article ran in Chatelaine, the warm, sensitive, loyal best friend to Canadian women and their children. The magazine, with its impressive reach of 3.5 million readers, is known for strong lifestyle fare--recipes, fitness and home decor stories--and, when it comes to feature articles, for consistently fair reporting. In Canada, getting taken down in Chatelaine is as close as it gets to being kneecapped by Oprah" (ibid). See also comments posted on a Chatelaine discussion board: . Allergic Living magazine also posted a number of responses. See Sara Shannon, "Sara Shannon's Reply to Chatelaine's 'It's Just Nuts'" (16 November 2009), online: Allergic Living ; and "Chatelaine--Our Forum's Rebuttal", online: Allergic Living .

(75) Meredith Broussard, "Everyone's Gone Nuts: The Exaggerated Threat of Food Allergies", Harper's Magazine (January 2008) 64.

(76) Ibid.

(77) Ibid at 65.

(78) Nicholas A Christakis, "This Allergies Hysteria is Just Nuts" (2008) 337 British Medical Journal 1384.

(79) Ibid.

(80) Ibid.

(81) Bob Roehr, "Should Men who have ever had Sex with Men be Allowed to Give Blood? Yes" (2009) 338 British Medical Journal b311. For the counter-response, see Jay P Brooks, "Should Men who have ever had Sex with be Allowed to Give Blood? No" (2009) 338 British Medical Journal b318. For discussion of other potentially discriminatory categories, see also Anthony Vernillo, "Blood Is a Precious Resource: Does It Really Matter Who Donates It?" (2010) 10:2 American Journal of Bioethics 44.

(82) Craig M Klugman, "Blood Donation and Its Metaphors" (2010) 10:2 American Journal of Bioethics 46 at 47.

(83) Ibid.

(84) Mark A Wainberg et al, "Reconsidering the Lifetime Deferral of Blood Donation by Men who have Sex with Men" (2010) 182 Canadian Medical Association Journal 1321.

(85) CBS currently imposes a five-year deferral period on organ donations from MSM, but until December 2007, had a permanent deferral. It has been suggested that the policy change "seems to have been based on a consideration of relative risk and the supply and demand of available donors." See ibid at 1323.

(86) Freeman, supra note 2 at para 526.

(87) Ibid at para 604.

(88) Ibid at para 608. In the US context, the Food and Drug Administration has been described as relying on "iffy science" to justify its permanent deferral policy. See Charlene Galarneau, "Blood Donation, Deferral, and Discrimination: FDA Donor Deferral Policy for Men who have Sex with Men" (2010) 10:2 American Journal of Bioethics 29 at 32.

(89) Freeman, supra note 2 at para 616.

(90) Leo & Clark, supra note 8 at 189.

(91) US, 76 Fed Reg 23156 (2011).

(92) US, Bill HR 2084, Department of Transportation and Related Agencies Appropriations Actor2000, 106th Cong, 2000, s 346.

(93) See text accompanying note 50.

(94) Freeman, supra note 2 at para 482.

(95) Ibid at para 562.

(96) Ibid at para 482.

(97) Ibid at para 593.

(98) Grenfell, supra note 56 at 4.

(99) UK, National Health Service, Blood and Transplant, "Current Issues: Exclusion of Men who have Sex with Men from Blood Donation" (November 2011), online: .

(100) Chu v Dufferin Peel Catholic District School Board, 2009 HRTO 1303.

(101) Ibid at para 6.

(102) Ibid at para 9.

(103) Lyndsie Bourgon, "In a Nutshell: What to do about Food Allergies in Schools" CBC News (13 December 2007) online: CBC .

(104) Kristin Rushowy, "Rights complaint spurs new lunch-bag checks" Parent Central (25 September 2008), online: Parent Central .

(105) Krista Wiebe, "Discrimination in Daycare Due to Allergies", online: (2007) 2 Allergy and Asthma News .

(106) Leo & Clark, supra note 8 at 190, referring to Section 504, Rehabilitation Act of 1973, 29 USC [section]794.

(107) "University of Ottawa report", supra note 49 at 44.

(108) Nancy S. Maldonado, "Peanut Butter in Schools: A Tough Nut to Crack!" (2009) 86:1 Childhood Education 40 at 41.

(109) Leo & Clark, supra note 8 at 189 write: ""Because of the large number of children without allergies, in both public and private schools, declaring nut-free buildings can create conflict among families. It has been argued that widespread removal of peanut and tree nut products from a school infringes on the personal rights of other children. In some school systems, this view has led to conflicts between families regarding the choices made by school administrators."

(110) Matthew J Greenhawt et al, "Empathy, Understanding, and Objectivity Need to Prevail for Students with Food Allergies" (2011) 107:2 Annals of Allergy, Asthma & Immunology 93 at 94 [Greenhawt et al].

(111) Maldonado, supra note 104.

(112) Patricia Pearson, supra note 72 at 129.

(113) Barbara Liston, "Peanut allergy stirs controversy at Florida school" Reuters (22 March 2011) online: Reuters .

(114) Ibid.

(115) Supra note 60 at 1023 (Mr. Yakabusi). He continues on to say: "We had a chat with the teacher and also with the parents of the child, and we very quickly gained a good understanding of just how dangerous and acute the reactions could be. So it seemed to us then to be quite a small sacrifice to make under the circumstances" (ibid).

(116) Supra note 19 at 468 (Mr. MacDonald).

(117) Supra note 27 at 6471 (Shane Simpson).

(118) Christy R Houle, Harvey L Leo & Noreen M Clark, " A Developmental, Community, and Psychosocial Approach to Food Allergies in Children" (2010) 10 Current Allergy & Asthma Reports 381 at 382.

(119) Manitoba, Legislative Assembly, Debates and Proceedings, 39th Leg, 2nd Sess, No 60 (3 June 2008) at 2570 (Erin Selby). She added: "If you're quite confident that your child cannot possibly come into contact with peanuts, well, maybe you won't worry about educating them on the safety of avoiding it, or perhaps one day you might not pack their EpiPen with them, and that, definitely, is not a good situation" (ibid).

(120) Canadian School Boards Association, Anaphylaxis: A Handbook for School Boards (Ottawa: Canadian School Boards Association, 2001) at 25.

(121) Decision No 4-AT-A-2010, supra note 1 at para 97.

(122) Freeman, supra note 2 at para 3. See also para 403: "Put simply, blood donation is a gift ... There is no requirement under the law for CBS, or any other blood provider, to accept the gift of blood from anyone."

(123) Ibid at para 38.

(124) Vamvakas, "Relative Risk", supra note 51 at 57.

(125) "University of Ottawa report", supra note 49 at 45.

(126) See Freeman, supra note 2 at para 133: "It is of critical importance to our health care system, and to the well-being of the users of that system, that a high level of trust in the blood supply system be fostered."

(127) Ibid at para 227: "... our collective well-being is at stake."

(128) See text accompanying note 82.

(129) Aitken J referred to the "overwhelming weight of evidence" that MSM have a higher risk of infection. See Freeman, supra note 2 at para 294. In introducing new guidelines for health services to MSM in June 2011, the World Health Organization reported that "men who have sex with men are nearly 20 times more likely to be infected with HIV than general populations." See World Health Organization, News Release, "Scaling up HIV Services for Men who have Sex with Men and Transgender People" (21 June 2011) online: .

(130) Freeman, supra note 2 at para 294.

(131) Jason Behrmann, "Ethical Principles as a Guide in Implementing Policies for the Management of Food Allergies in Schools" (2010) 26 Journal of School Nursing 183 at 188 [emphasis added].

(132) See testimony of Tad Brown, appearing before the Ontario Standing Committee on General Government, see Ontario, House of Commons, Standing Committee on General Government, Committee Transcripts (4 May 2005) at G-I026. Kim Craitor, a member of Provincial Parliament responded: "you said that sometimes [parents are] ... 'emotional, a little irrational.' I tell you, when it comes to the safety of kids, there's nothing wrong with that" (ibid at G-1026) .

(133) Supra note 19 at 470 (Harry B. Chase).

(134) Greenhawt et al, supra note 110 at 93.

(135) Ibid.

(136) Supra note 119 at 2570 [emphasis added].

(137) Canadian Society of Allergy and Clinical Immunology, "Anaphylaxis in Schools and Other Child Care Settings" (August 1995), online: Canadian Society of Allergy and Clinical Immunology .

(138) Matthew J Greenhawt, Marc S McMorris & Terence J Furlong, "Self-reported Allergic Reactions to Peanuts and Tree Nuts Occurring on Commercial Airlines" (2009) 124:3 Journal of Allergy and Clinical Immunology 598 at 599.

(139) Decision No 4-AT-A-2010, supra note 1 ("[i]n light of the evidence, the Agency finds that the risk of an allergic reaction due to the inhalation of peanut or nut particles on aircraft is significantly reduced on modern generation aircraft as a result of both the aircraft air filtration and circulation systems. The Agency accepts the expert evidence that the greater risk of a serious allergic reaction is from ingestion due to an accidental exposure" at para 83).

(140) Ibid at para 64.

(141) Ibid at para 13.

(142) Supra note 137.

(143) Decision No 4-AT-A-2010, supra note I at para 79.

(144) Freeman, supra note 2 at para 27.

(145) Behrmann, supra note 9. See also Greenhawt et al, supra note 110 at 94.

(146) In human rights jurisprudence, the Supreme Court of Canada has instructed that individual assessments ought to be incorporated to avoid discriminatory impacts of policies that exclude persons with disabilities from benefits available to others. Individual assessments are not required where they will cause undue hardship. For discussion, see e.g. British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), [1999] 3 SCR 868, 181 DLR (4th) 385.

(147) Concern has been expressed about inconsistent application of policies among airlines. For example, a U.S. survey of airline passengers with allergies found that over 60% of respondents had provided advance notice of their allergy to the airline and requested accommodation, but just under 40% actually received accommodation. Greenhawt, McMorris & Furlong, supra note 110.

(148) Grenfell et al, supra note 56.

(149) Vamvakas, "Relative Risk", supra note 51 at 47.

* Nola M. Ries, JD, MPA, LLM is a Research Associate with the Health Law Institute, University of Alberta. The author is grateful to Katherine J. Fisher, BScN, MN, JD candidate at the Faculty of Law, University of Alberta, for excellent research assistance. This work was supported with funding from the Allergy, Genes and Environment Network of Centres of Excellence (AllerGen NCE Inc.) and the Canadian Blood Services James Kreppner Fellowship.
What else do we need to legislate? Should we be legislating safety
   practices for football programs? Should it be in legislation exactly
   what sort of safety practices you're going to have for a football
   program or a hockey program? Are we going to put in legislation
   the safety protocols for playing on the playground over lunchtime
   rather than in school policy? How much do we actually have to put
   in legislation, and will it make us all safer? (22)

the original catastrophic failure in the risk management of donated
   blood, in Canada and elsewhere during the 1980s, gave rise to a
   second failure, which continues down to the present day. This
   second failure, attributable to the blood regulatory agencies, is
   the unwillingness to adjust the deferral period for blood donations
   by gay men in accordance with evidence-based reasoning. It amounts
   to a clearly unreasonable form of discrimination based on sexual
   orientation, and it is a public policy scandal, a blemish on our
   devotion to the rights and freedoms of individuals that will
   persist until it is changed, as it must be. (71)

Legislation in and of itself is not going to teach a teacher about
   an EpiPen. Legislation in and of itself is not going to educate the
   parents in that school community as to how important it is that
   they're careful with what foods they put in their own child's
   lunch. Legislation in and of itself isn't necessarily going to
   change the overall attitudes that continue to pose a danger for
   students around this province. (72)

The issue is not whether nut allergies exist or whether they can
   occasionally be serious. Nor is the issue whether reasonable
   accommodation should be made for the few children who have
   documented serious allergies. The issue is what accounts for the
   extreme responses to nut allergies and what to do about the
   responses and the allergies themselves. (80)

testified that, although he considered a blanket exclusion of
   MSM prudent in the early 1980s, he believed that it can no longer
   be justified when current epidemiologic studies have shown that it
   is only certain types of MSM activity that pose a higher risk for
   the transmission of HIV ... In his view, MSM sexual histories could
   be reliably ascertained through interviews and MSM excluded based
   on high risk activities only. His recommendation was for MSM donor
   exclusion to be based on whether a man had had unprotected (without
   a condom) anal sex (receptive or insertive) with another male
   within a specified period of time (perhaps within the last year or
   within the last five years). (95)

Although some would prefer a system that assesses every
   individual's behaviour and level of risk rather than applying
   deferrals to groups, [an expert] review concluded that there is
   insufficient evidence available to be able to determine the impact
   on blood safety of such a system. It is also not certain that all
   people could objectively assess their own level of risk. Based on
   published data, the review also concluded that the introduction of
   extensive donor questions regarding sexual behaviour could lead to
   a loss of existing donors who may find the process intrusive. The
   Blood Services are therefore required to follow deferral rules that
   estimate the statistical risk of certain groups based on behaviour.
   We are sorry for any inadvertent offence this may cause. (99)

helps to ensure that children with certain health problems are
   given equal and appropriate educational opportunity, and are not
   discriminated against during the school day. For example, the 504
   law prevents a child from being forced to eat lunch in the nurse's
   office, excluded from a field trip, or excluded from a classroom
   project on the basis of the child's food allergy. Section 504 [of
   the Act] is widely utilized by parents of food-allergic children to
   create a written management plan ... in collaboration with key
   school personnel and the child's allergist and/or primary care
   physician. (106)

The frustration expressed by parents of unaffected children should
   not be dismissed by those who are affected by food allergy.
   Although the concerns of food-allergic families need to be taken
   into account, and establishing policies that maximize safety is
   paramount, seeking input and participation from non-food-allergic
   families may help this process go more smoothly. It is important to
   recognize that both sides have the right to express their feelings,
   which can help foster a productive debate leading to mutually
   satisfactory solutions. (110)

I have to be honest with you. I remember when our children started
   school. Our youngest ... was given instructions that he couldn't
   bring certain things to school for lunches and/or snacks because of
   the fact that there was an anaphylactic child in his class ... Our
   first reaction, my wife and I, was, "What's this all about? Why
   should our son not be able to take what he wants to school for
   lunch?" (115)

Protecting children with life-threatening food allergies means
   imposing some limitations on the foods that other children and
   school staff can bring into the school or on the places where those
   foods can be enjoyed. Because one of the most common allergens is
   peanut, and peanut butter is one of the most popular items for
   school lunches, emotions have run high in some boards when attempts
   have been made to "ban" peanut butter. In fact, experience suggests
   that the outright banning of any substance is not only
   controversial , but it is also less successful than cultivating
   understanding and enlisting the voluntary support of members of the
   school community. (120)

Decision makers in public health--including school health--should
   thus imagine themselves as 'caring parents' for members of society
   under their responsibility, and they should ask themselves the
   following question: "what resources and level of protection would
   you expect if it were your food allergic child?" The answer to this
   question can prove valuable in informing choices about which
   policies to enact within a given school or child care facility.

[t]he risk of a reaction from a non-ingestion environmental
   accidental contact appears to be extremely low. Using peanut as an
   example, researchers failed to detect peanut in neck-level air
   filters after walking on peanuts in a poorly ventilated room.
   Similarly, inhaling in close proximity to peanut butter did not
   induce reactions. No peanut was detected on surfaces after cleaning
   with commercial products, and hand washing (but not liquid
   sanitizer) removed peanut from one's skin. (134)

In the case of nuts, many schools have chosen to be nut-free,
   because it is one of the more dangerous allergies and the one that
   is one of the more-sensitive ones. Children with nut allergies
   don't even necessarily have to come in contact with peanuts. They
   may just breathe in the air. They may sit close to someone who had
   a peanut butter sandwich earlier. (136)

Be it resolved that the Legislative Assembly urge the government to
   introduce legislation requiring all school boards to establish and
   maintain an anaphylactic policy that includes strategies to reduce
   exposure to anaphylactic causative agents, information on
   life-threatening allergies, annual first aid training on dealing
   with life-threatening allergies, and a requirement for every
   school principal to develop a plan for each pupil affected by
   an anaphylactic allergy, including the maintenance of a file for
   each anaphylactic pupil (ibid).
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