On Thursday, May 28, 2015, the Supreme Court of Canada will
release judgment on several leave applications currently before the
Court, including the following.
Mangal v. William Osler Health Centre (36174)
Mangal is a medical malpractice case in which a woman
died in hospital several hours after a caesarean section. The case
raises the question of whether a trial judge may adopt new theories
of factual causation not advanced by the parties.
In Mangal, the trial judge concluded that one of the
physicians involved in Ms. Mangal's care breached his duty of
care by failing to promptly notify an obstetrician about Ms.
Mangal's condition at a critical stage. However, because the
trial judge found that Ms. Mangal died due to an untreatable
blockage in her lung, he dismissed the plaintiffs' claim. At
the Court of Appeal, the plaintiffs argued that the trial
judge's blockage in the lung theory was not supported by the
evidence nor pleaded by the parties and that they were prejudiced
because they could not have reasonably anticipated a judge-made
causation theory or have responded to it at trial. The plaintiffs
requested a new trial.
A majority of the Ontario Court of Appeal dismissed the appeal. According to the
majority, the trial judge "was not engaged in an
either-or-exercise where he was obliged to accept one theory of
liability or the other. Rather, the trial judge's function was
to determine if the appellants had met their onus of proving on a
balance of probabilities that, but for the negligence of the
respondents, Ms. Mangal would not have died. In so doing, it was
open to the trial judge to accept some, none, or all of a
witness's evidence, including an expert witness's
Feldman J.A. dissented, concluding that the trial judge had: (1)
committed a palpable and overriding error and misapprehended the
evidence in determining the cause of death; and (2) committed an
error of law by finding a cause of death that was not put forward
by the parties or the witnesses at trial, contrary to the Court of
Appeal's earlier ruling in Grass (Litigation Guardian of)
v. Women's College Hospital.2
Flanagan v. Attorney General of Canada (36316)
Do members of the RCMP have a contract-based employment
relationship with the Crown? If so, does the grievance procedure in
the Royal Canadian Mounted Police Act, R.S.C. 1985, c.
R-10 constitute a member's sole remedy for breach of that
contract or can they proceed by civil action? These are the
questions raised in Flanagan, a case involving a 25 year
member of the RCMP who received a voluntary discharge in 2005 after
a dispute with his superiors regarding his alcohol consumption.
Officer Flanagan contends that the discharge constitutes a
constructive, wrongful dismissal and commenced an action for
damages. Both the motion judge and the B.C. Court of
Appeal3held that Officer Flanagan's sole remedies
lay in pursuing the grievance procedure under the legislation or
seeking administrative injunctive or other relief while he remained
a member of the force.
 Mangal v. William Osler Health Centre, 2014 ONCA 639, at para. 61, citing Grass
(Litigation Guardian of) v. Women's College Hospital
(2005), 75 O.R. (3d) 85 (C.A.).
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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