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 evidence.”[1]

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 Appeal[3] held 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.