April 3, 2025 • 21 mins
The complex interplay between law, morality, and human tragedy takes center stage in our latest episode examining three compelling legal cases that highlight how our justice system navigates competing interests.
We begin by exploring the "rescuer doctrine" - a legal principle establishing that if someone's negligence creates a dangerous situation, they can be liable for injuries sustained by those who attempt to help. This emerged in a heartrending case involving a woman who rushed to save a person whose wheelchair became stuck on railway tracks as a train approached. Despite her heroic efforts, she couldn't free the wheelchair in time, resulting in the death of the wheelchair user and injuries to herself. The railway company's attempts to avoid a jury trial were rejected by the judge, allowing this sympathetic rescuer to have her day in court.
The tension between access to justice and financial realities takes shape in our second case, where a woman with limited means sought to appeal the dismissal of her medical malpractice claim. When the doctor requested she provide $5,000 security for potential legal costs, the court faced a dilemma: demanding full security might deny her right to appeal, while waiving it entirely would unfairly burden the doctor with legal expenses for what appeared to be a weak claim. The Court of Appeal struck a compromise, requiring just $1,000 security and extending the payment deadline - demonstrating how judges must sometimes find middle ground when principles collide.
Finally, we delve into the emotionally charged issue of faith-based hospitals refusing to provide medical assistance in dying. When a terminal cancer patient had to be transferred from St. Paul's Hospital for MAID services, causing her additional suffering, it sparked litigation questioning whether religious exemptions can override patient rights. The case has attracted numerous interveners representing various perspectives, revealing how our courts manage cases with broad societal implications.
Have you encountered situations where competing rights created difficult legal questions? Share your thoughts and join our conversation about how the justice system balances competing interests.
Follow this link for a transcript of the show and links to the cases discussed.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
It's time for our regular segment with Michael
(00:02):
Mulligan, barrister andsolicitor, with Mulligan Defence
Lawyers, legally speaking onCFAX Afternoon.
Michael, how are we doing?
Michael Mulligan (00:08):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:11):
Some interesting items on the agenda today.
For example I'm reading thefirst one here.
I had no idea this existed.
There's something called arescuer doctrine, and it plays
into a civil matter that we'rediscussing this week.
Michael Mulligan (00:24):
Indeed, that's a good sounding doctrine, isn't
it?
The rescuer doctrine.
There's so many.
There's so many doctrines.
We just keep coming up withthese things, right?
So the idea behind the rescuerdoctrine is that if a person
does something negligent and itresults in a circumstance where
a person's going to reasonablyfeel that they need to rescue a
(00:46):
person, you can be civillyliable for injuries sustained by
the rescuer.
So here's an example Back, Iguess, when we were still
responsible for car accidents.
Let's say you are careless, youcrash into somebody, it causes
their car to flip over and catchfire, right, and some brave
passerby decides to rush overthere and try to save the person
by getting them out of theircar to flip over and catch fire,
right, and some brave passerbydecides to rush over there and
(01:07):
try to save the person bygetting them out of their car
and they wind up getting injured.
You could be responsible forthat person too, right?
That kind of makes sense, right?
The idea is hey, you didsomething.
It caused somebody else to tryto intervene to protect somebody
.
You could be on the hook forthat.
Well, the case to talk abouttoday involves that concept and
(01:27):
involves a train.
So I guess we don't have toworry about no fault.
And so the fact pattern wasthis it was in Broadway in
Chilliwack and there was arailway crossing there and there
was a person who was seated inhis electric wheelchair when one
(01:48):
or more of the wheels on hiswheelchair may have become stuck
in a gap alongside the railwaytrack.
And you can see where this isgoing.
A train was approaching and theplaintiff in this case she
rushed over and attempted tofree the wheelchair from where
it was stuck with theapproaching train.
Very sadly, she failed.
(02:09):
The train struck the person inthe wheelchair.
He died, and the train alsoinjured the woman who went over
there trying to save him.
He's got a civil claim againstthe railway company on the basis
of physical, emotional, nodoubt, and financial damages
resulting from that incident,and so the first interesting
(02:34):
thing is exactly what we justtalked about is that the railway
company is, at leastpotentially liable for her
injuries.
Right, if the railway companywas negligent or careless in
terms of, I guess, how itmaintained the tracks or how the
train was driving, or whateverit might be and caused that
(02:54):
circumstance, for a person in awheelchair was stuck on the
track, just like if you hit acar and it slipped over and on
fire.
You might expect some people tocome and help.
And so that's the basis of thecase.
The other interesting thingabout it this case is still is
ongoing now and the otherinteresting element to it we've
(03:15):
talked about this before is thatthe defendants, the railway
company, are not surprisingly, Iguess, on that fact pattern
trying to prevent the woman fromhaving a jury trial.
You might imagine how the womanwho rushed over to save the
person in the wheelchair from anapproaching train is going to
be a rather sympathetic figure,probably for a jury.
(03:36):
And so the railway company, inits defense, is planning to call
at least 14 experts, I guess,trying to various things
accident reconstruction peopleand psychiatric experts and
occupational therapists, and allof that, you know.
Good luck to them.
And they're making the argumentthat because of all that expert
(03:57):
evidence, the case would be sointricate or complex that it
couldn't be fairly tried by ajury.
And so, while you have a generalright to a jury trial, but the
one side or the other could tryto set that aside if they can
prove to the judge that theissues couldn't be fairly tried
by the jury on the basis of justhow complicated they are, and
(04:18):
so that's the argument made bythe railway company, and that's
what the part of the case thatwas just decided the judge, I
think, wisely concluded thatwell, yes, there's a number of
experts being called there thefact pattern wasn't so
complicated that a jury would beunable to deal with it right,
just like other personal injurycases.
And you know that rescuerdoctrine we've just discussed it
(04:40):
in a couple of minutes and sothe judge has denied the
application by the railwaycompany to prevent the woman,
the rescuer, from having a jurytrial, and so, because of that,
she'll be able to proceed as shewished, to have the jury decide
the issue, and the jury willneed to decide whether she was a
rescuer and then whether therailway is responsible for, was
(05:05):
negligent and caused thataccident, I guess by the
maintenance of the tracks or howthe train was driving, and
we'll find out the answer.
But I thought it was worthcommenting on, because that
rescuer doctrine may not befamiliar to anyone and everyone,
and it is something that canexpand your liability if you do
something that causes adangerous circumstance where
other people are going tointervene to try and help
(05:27):
fascinating up next I'm readingit says security for costs on an
appeal where the appellantappellant, excuse me has no.
Adam Stirling (05:35):
I think that says money yes, that's right.
Michael Mulligan (05:39):
So the uh as we've talked about in cases, if
you sue somebody and lose, youare going to presumptively be on
the hook for costs which arenot all the cost of it but a
portion of the legal expenses ofthe person that you sue
unsuccessfully.
And the reverse is true as wellIf you are sued and there's a
(05:59):
good claim against you and youdidn't just pay for it and you
lose in court, you can be on thehook for some of their expenses
.
So the idea is get you to sortthings out where you should,
right, and so one of thechallenges that can arise is
where one party has no money and, in particular, this is a
(06:20):
circumstance where there was aclaim.
It was a claim against a womansuing a doctor, and she made
this claim.
She was referred by her GP,apparently for treatment for a
sore neck that was whatapparently occurred here and she
(06:42):
attended for treatment at anoffice of a physiatrist
hopefully getting thatpronounced correctly and there
was some treatment involving theuse of needles and the woman
claimed that the needles piercedher bones and destroyed her
bones and destabilized her body,claiming that they injured her
(07:04):
spinal cord.
That was her claim.
Wow, that trial was a summarytrial.
All of that got dismissed, inlarge part relying upon a report
of another expert who said well, first of all, the doctor said
at no point did these tinyneedles touch her bones.
There was an expert report fromanother doctor saying there was
just no way that could occurand as a result of that, the
(07:31):
other part of the claim and thiscould be a common part of a
medical negligence claim one ofthe requirements when you're
getting medical treatment isthat you provide informed
consent to a procedure right andthe degree of information that
needs to be provided and thedegree of care with which
consent has to be provided is inaccordance with, for example,
(07:51):
you know how optional is thisprocedure right?
If, for example, you're wheeledinto the emergency room with a
knife sticking out of your backor whatever, right, they're
probably not going to bespending too much time
discussing with you the dangersof removing the knife and even
if they don't, you're probablynot going to have much of a
claim against them for gettingthe knife out of your back on
(08:11):
the basis that, well, look,you're about to die from this
knife and so you know anyone andeveryone is going to say yes to
get the knife out of my back,right.
But when you're going in forprocedures that are much more
optional like maybe you knowneedles to cure a neck pain,
right you may need to be gettingquite detailed information
about things like what risksexist so that you can decide,
(08:34):
you know, would I in fact agreeto this treatment right Now?
The woman claimed that shedidn't know that there was going
to be some treatment of herback and she claimed that she
didn't, or treatment of her neckand she claimed she didn't have
any neck pain.
Now, that didn't get too far atthe original trial, because she
(08:54):
had written a letter speakingafter the treatment about her
neck pain and there was anintake form about what was about
to happen, and so there wassome significant issue there and
so it didn't succeed at trialand she was now trying to appeal
that decision.
Largely, the appeal seemed tohave little merit because it was
just re-arguing it, re-arguingthe case.
But the challenge here is thedoctor was saying arguing the
(09:20):
case.
But the challenge here is thedoctor was saying, look, I
should get some security forcosts because this claim appears
to have little merit.
The appeal seems to have littlemerit.
It didn't work at trial it'sunlikely to work on the appeal.
And so the doctor was askingfor what's called security for
costs in the amount of $5,000.
And that would amount to arequirement that the person
bringing a claim deposit the$5,000.
And that would amount to arequirement that the person
bringing a claim deposit the$5,000 into court, like with the
(09:42):
court registry, so if they losethey would, then there'd be
money there to pay the courtcosts of the other side.
That's the idea there.
Now the balancing and theproblem is that when the person
who would be required to pay thecosts has no money which is
usually why somebody's askingfor the security of costs to
begin with, do you know what Imean?
Like, if you're suing BillGates, you're probably not
(10:05):
asking for security for costsbecause he's going to have money
to pay the judgment if he'sunsuccessful, right, yeah, but
this particular person sheindicated she had no money and
was on income assistancedisability indicated she had no
money and was on incomeassistance disability.
And so that's where the realrub arises, because on one hand,
it seems very clear that if sheloses, there's going to be no
(10:27):
money to pay the cost of thedoctor, right.
But on the other hand, if thecourt says, well, yeah, we don't
want to have the doctor out allthe court costs, if you're
unsuccessful in your appeal, itmay mean that the person with no
money can't proceed at all,right, which also doesn't seem
too fair.
So what do you do with that?
And that's what the court ofappeal here was balancing, that
(10:47):
sort of interest of not leavingthe doctor high and dry.
If this you know claim thatappeared to have, you know, kind
of thin on its merits becauseit didn't succeed at trial, was
unlikely to succeed on theappeal, versus not, you know,
causing somebody to be unable toappeal their case because they
don't have the $5,000.
So how do you weigh that Now?
(11:09):
It looked like it was sort ofon the cusp of just being told
no, pay the $5,000, your claimor your appeal has apparently no
merit at all.
I guess you're just re-arguingit.
But the saving grace for thewoman was that she got head
before the court.
She self-represented a letterfrom her GP along with an
(11:30):
affidavit which was unsworn.
I'm clear why it was not sworn,but the affidavit assuming that
it is sworn and is accurate wasfrom the doctor's office saying
that the doctor's officer, gp,made a error and intended to
refer her to a psychiatrist, notthis other doctor.
(11:50):
Oh no, maybe that goes to thatissue of.
It seems like a bit of an oddclaim, right, this claim that,
you know, the needles got in mybones and they destroyed my
bones and that I've becomedestabilized in my whole body
and all that.
Maybe that feeds into it.
But there appears to be someember here of well, maybe
(12:10):
something did go wrong here,right, despite the intake form
and the letter and the claim,that seems to be a little bit
out there.
Maybe there's something to it.
And so the Court of Appeal saidwell, you know, this woman may
have a challenge, in partbecause if you're trying to get
fresh evidence in on an appeal,one of the things you have to
show is that you couldn't havereasonably got that evidence at
(12:31):
your trial, right, you don'twant somebody like running a
trial, losing it and saying, oh,now I'll try this other
evidence on right, if you havesomething or you could
reasonably get some evidencethat would be important, you're
required to do that off the bat.
You can't kind of wait and tryit on later.
And so the court said well, youknow, this is still, you know,
(12:54):
kind of on the margin, but youcan't say that it's doomed to
fail, right, there seems someember here to blow on, assuming
that you, assuming thataffidavit is accurate and so on.
It was unsigned at the time andso with all of that and I guess
it's the tough cases that get tothe Court of Appeal they have
to weigh up.
What do you do?
Do you require her to pay the$5,000?
It was within 30 days, was therequest.
Or do you say no and the doctoris going to have to be
(13:14):
basically on the hook if thisthing continues to have no merit
on the appeal?
What do you do?
Well, they cut it down themiddle Maybe that's a sign of a
just decision and they concludedthat there should be security
for costs, but only in theamount of $1,000.
And rather than 30 days, they'dgive her 60 days to come up
with it.
And so that's how they balancedit and we'll have to wait and
(13:35):
see what the outcome is.
If she genuinely has absolutelyno money, it may be that she
just cannot advance this appeal,but on the other hand, the
Court of Appeals said more timeand a lower amount.
You know, she legitimatelythinks she was aggrieved and
there is at least a letter, anunsigned affidavit, that said
maybe they were trying to referit to a psychiatrist not
(13:57):
somebody for her neck maybe andso we'll have to wait and see
the outcome.
But that's how security forcosts works, and that's what the
Court of Appeal was just veryrecently wrestling with, this
came out on Monday.
Adam Stirling (14:07):
Michael Mulligan from Mulligan Defense Lawyers,
legally speaking, will continueright after this.
Back on the air here at CFAX1070 as Legally Speaking
continues with Michael Mulliganfrom Mulligan Defense Lawyers.
Michael up next on our agendawith just under seven minutes or
, excuse me, under six minutesremaining in our show today.
Faith-based medical facilities,it says, refusing medically
(14:28):
assisted death and who canintervene in the case.
Michael Mulligan (14:36):
A very morally complicated and understandably
sensitive topic.
Absolutely A really interestingpiece of litigation to watch.
It's a piece of litigation.
It arose out of a fact patterninvolving a woman who was
admitted to St Paul's Hospitalin early 2022.
She was diagnosed with anadvanced form of cervical cancer
and, very sadly, by February of2023, she was approved for
(14:57):
medically assisted dying.
That was her wish.
The hospital, St Paul's, doesnot provide those services for
religious reasons and, as aresult, she was transferred to
another facility and the claimis that the transfer caused her
considerable pain and distress.
That's the fact pattern.
(15:17):
The claim is being broughtagainst the province of British
Columbia in various capacitiesand the health authority on the
basis that it's their policiesthat allowed St Paul's to deny
her the medical assistance anddie and caused her that distress
before the end of her life.
And so a sad, tragic factpattern.
(15:40):
But that's how it's framed here, and the issue being dealt with
by the Supreme Court at thisstage is who all is permitted to
come and argue about that,right?
I mean, they've got the claimbrought on behalf of the woman,
right her estate, but there's awhole host of people that want
(16:02):
to show up and argue about thatbecause it has broad societal
implications.
And so there's a long list ofpeople that wanted to
participate in the legalargument.
They included things likeCanadian Civil Liberties
Association, the BC HumanistAssociation, you know, the
Physicians for Life, theChristian Legal Fellowship, and
(16:23):
on and on it goes.
One of the groups there is, theCanadian Constitutional
Foundation that wanted tointervene, and so the judge
deciding this had to decide,well, which of these can
participate and, if so, in whatway.
And the decision about who getsto participate and it's not a
free-for-all right.
Not everyone, every busybodylawyer, can just show up and
(16:43):
start making submissions on acase because they think it's
interesting.
There's got to be some kind ofa threshold and, like in many
legal things, this has beengiven some thought in the past,
and so there's an approach to betaken.
And so the first thing a judgeneeds to think about, they need
to consider three different sortof threshold considerations.
First, the nature of the groupseeking the intervener status,
(17:05):
whether the directness of thegroup's interest in the matter.
You know, is this a busy body?
Do they have some realconnection to it?
What's going on?
And then the suitability of theissues that the person wants to
intervene on, like what is itthey have to say here?
And then, when you considerthose things, the other thing
the court has to do is they needto ask themselves, first of all
, does this group have a directinterest in it, In the sense
(17:28):
that, you know, is the decisionthat's made going to have you're
going to prejudice theirinterests or affect their
obligations, that kind of thing.
And so you know, if you lookedat a group like, let's say here,
for example, CanadianPhysicians for Life, like I can
guess by the name, what theirobjective is likely to be right.
They would say well, look, youknow, we think we have a direct
interest in it because we mightbe required to assist in the
(17:52):
medically assisted dying.
We don't want to, for example,right?
On the other hand, if you havesomebody who does, and so that
would be way in favor ofallowing a group to participate
in it, you know they're not theones being sued, but they've got
a direct interest in it.
If the group wanting tointervene does not have a direct
interest in it, they then haveto be some other considerations,
like you know.
(18:13):
How broad is theirrepresentative base Do they have
?
Are they legitimately engagedin the issues here?
Do they offer a uniqueperspective?
Right, you know, is theresomething useful in allowing
them to intervene?
And another consideration isthe parties.
Do they oppose it or are theysupportive of the additional
views being represented?
And in this case, the partiespursuing and the province were
(18:34):
supportive of all the groupsintervening, except that the
Canadian ConstitutionalFoundation and the argument made
against them allowing toparticipate was that the
submissions they wished to makewere ones that were in some
respects, sort of more generalconsiderations, because the
constitutional issues here beingargued is, first of all,
(18:57):
whether this policy amounts to abreach of the Section 2A
Freedom of Conscience andReligion or Section 7, life,
liberty and Security of thePerson.
And the Canadian ConstitutionalFoundation takes legal issue
with how narrowly Section 2B hasbeen interpreted, and their
(19:21):
position is that that sectionshould be interpreted more
broadly to include things thatthey would describe as lifestyle
choices, as opposed to a sortof a more narrow, you know,
conscientiously held beliefs.
They want a more expansivedefinition of how that section
is to be interpreted, and so thejudge ultimately concluded that
(19:43):
, you know, that really wouldwind up expanding this beyond
what was really the focus of thelitigation, and so, even though
many of those other interestswould have all had a general you
know, many of them werereligious groups that were in
support of allowing exemptions,and this was sort of an
(20:03):
alternative perspective on itthe judge concluded that it
wasn't appropriate to allow thatparticular entity to be
involved with it, and then,finally, what the judge decided
to do is to limit how all ofthese groups are going to be
allowed to participate.
It's not just you get to go inand cross-examine every witness
and so on.
The judge has allowed all theother groups to participate, but
(20:25):
only to the extent of providingwritten submissions of no more
than 10 pages, and then theywould need to get permission
from the trial judge to makeoral submissions, and they're
not allowed to call evidence orexamine witnesses or do things
like that, and they won't getcosts, even if their side wins
or loses.
And so that's how it was sortedout and that's the kind of
(20:46):
approach that a judge needs totake when they're deciding.
Do you allow some group to showup and participate in
litigation where there's thiskind of broad public policy
decision that could have animpact on people beyond the
individuals who are actuallydirectly involved in the
litigation?
So we'll have to wait and seewhat comes of that decision and
(21:06):
whether the policy allowing forreligious exemptions continues
or whether it's found to beunconstitutional.
Adam Stirling (21:13):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always.
Thanks so much.
Always great to be here.
It's time for our regular segment with Michael
(00:02):
Mulligan, barrister andsolicitor, with Mulligan Defence
Lawyers, legally speaking onCFAX Afternoon.
Michael, how are we doing?
Michael Mulligan (00:08):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:11):
Some interesting items on the agenda today.
For example I'm reading thefirst one here.
I had no idea this existed.
There's something called arescuer doctrine, and it plays
into a civil matter that we'rediscussing this week.
Michael Mulligan (00:24):
Indeed, that's a good sounding doctrine, isn't
it?
The rescuer doctrine.
There's so many.
There's so many doctrines.
We just keep coming up withthese things, right?
So the idea behind the rescuerdoctrine is that if a person
does something negligent and itresults in a circumstance where
a person's going to reasonablyfeel that they need to rescue a
(00:46):
person, you can be civillyliable for injuries sustained by
the rescuer.
So here's an example Back, Iguess, when we were still
responsible for car accidents.
Let's say you are careless, youcrash into somebody, it causes
their car to flip over and catchfire, right, and some brave
passerby decides to rush overthere and try to save the person
by getting them out of theircar to flip over and catch fire,
right, and some brave passerbydecides to rush over there and
(01:07):
try to save the person bygetting them out of their car
and they wind up getting injured.
You could be responsible forthat person too, right?
That kind of makes sense, right?
The idea is hey, you didsomething.
It caused somebody else to tryto intervene to protect somebody
.
You could be on the hook forthat.
Well, the case to talk abouttoday involves that concept and
(01:27):
involves a train.
So I guess we don't have toworry about no fault.
And so the fact pattern wasthis it was in Broadway in
Chilliwack and there was arailway crossing there and there
was a person who was seated inhis electric wheelchair when one
(01:48):
or more of the wheels on hiswheelchair may have become stuck
in a gap alongside the railwaytrack.
And you can see where this isgoing.
A train was approaching and theplaintiff in this case she
rushed over and attempted tofree the wheelchair from where
it was stuck with theapproaching train.
Very sadly, she failed.
(02:09):
The train struck the person inthe wheelchair.
He died, and the train alsoinjured the woman who went over
there trying to save him.
He's got a civil claim againstthe railway company on the basis
of physical, emotional, nodoubt, and financial damages
resulting from that incident,and so the first interesting
(02:34):
thing is exactly what we justtalked about is that the railway
company is, at leastpotentially liable for her
injuries.
Right, if the railway companywas negligent or careless in
terms of, I guess, how itmaintained the tracks or how the
train was driving, or whateverit might be and caused that
(02:54):
circumstance, for a person in awheelchair was stuck on the
track, just like if you hit acar and it slipped over and on
fire.
You might expect some people tocome and help.
And so that's the basis of thecase.
The other interesting thingabout it this case is still is
ongoing now and the otherinteresting element to it we've
(03:15):
talked about this before is thatthe defendants, the railway
company, are not surprisingly, Iguess, on that fact pattern
trying to prevent the woman fromhaving a jury trial.
You might imagine how the womanwho rushed over to save the
person in the wheelchair from anapproaching train is going to
be a rather sympathetic figure,probably for a jury.
(03:36):
And so the railway company, inits defense, is planning to call
at least 14 experts, I guess,trying to various things
accident reconstruction peopleand psychiatric experts and
occupational therapists, and allof that, you know.
Good luck to them.
And they're making the argumentthat because of all that expert
(03:57):
evidence, the case would be sointricate or complex that it
couldn't be fairly tried by ajury.
And so, while you have a generalright to a jury trial, but the
one side or the other could tryto set that aside if they can
prove to the judge that theissues couldn't be fairly tried
by the jury on the basis of justhow complicated they are, and
(04:18):
so that's the argument made bythe railway company, and that's
what the part of the case thatwas just decided the judge, I
think, wisely concluded thatwell, yes, there's a number of
experts being called there thefact pattern wasn't so
complicated that a jury would beunable to deal with it right,
just like other personal injurycases.
And you know that rescuerdoctrine we've just discussed it
(04:40):
in a couple of minutes and sothe judge has denied the
application by the railwaycompany to prevent the woman,
the rescuer, from having a jurytrial, and so, because of that,
she'll be able to proceed as shewished, to have the jury decide
the issue, and the jury willneed to decide whether she was a
rescuer and then whether therailway is responsible for, was
(05:05):
negligent and caused thataccident, I guess by the
maintenance of the tracks or howthe train was driving, and
we'll find out the answer.
But I thought it was worthcommenting on, because that
rescuer doctrine may not befamiliar to anyone and everyone,
and it is something that canexpand your liability if you do
something that causes adangerous circumstance where
other people are going tointervene to try and help
(05:27):
fascinating up next I'm readingit says security for costs on an
appeal where the appellantappellant, excuse me has no.
Adam Stirling (05:35):
I think that says money yes, that's right.
Michael Mulligan (05:39):
So the uh as we've talked about in cases, if
you sue somebody and lose, youare going to presumptively be on
the hook for costs which arenot all the cost of it but a
portion of the legal expenses ofthe person that you sue
unsuccessfully.
And the reverse is true as wellIf you are sued and there's a
(05:59):
good claim against you and youdidn't just pay for it and you
lose in court, you can be on thehook for some of their expenses
.
So the idea is get you to sortthings out where you should,
right, and so one of thechallenges that can arise is
where one party has no money and, in particular, this is a
(06:20):
circumstance where there was aclaim.
It was a claim against a womansuing a doctor, and she made
this claim.
She was referred by her GP,apparently for treatment for a
sore neck that was whatapparently occurred here and she
(06:42):
attended for treatment at anoffice of a physiatrist
hopefully getting thatpronounced correctly and there
was some treatment involving theuse of needles and the woman
claimed that the needles piercedher bones and destroyed her
bones and destabilized her body,claiming that they injured her
(07:04):
spinal cord.
That was her claim.
Wow, that trial was a summarytrial.
All of that got dismissed, inlarge part relying upon a report
of another expert who said well, first of all, the doctor said
at no point did these tinyneedles touch her bones.
There was an expert report fromanother doctor saying there was
just no way that could occurand as a result of that, the
(07:31):
other part of the claim and thiscould be a common part of a
medical negligence claim one ofthe requirements when you're
getting medical treatment isthat you provide informed
consent to a procedure right andthe degree of information that
needs to be provided and thedegree of care with which
consent has to be provided is inaccordance with, for example,
(07:51):
you know how optional is thisprocedure right?
If, for example, you're wheeledinto the emergency room with a
knife sticking out of your backor whatever, right, they're
probably not going to bespending too much time
discussing with you the dangersof removing the knife and even
if they don't, you're probablynot going to have much of a
claim against them for gettingthe knife out of your back on
(08:11):
the basis that, well, look,you're about to die from this
knife and so you know anyone andeveryone is going to say yes to
get the knife out of my back,right.
But when you're going in forprocedures that are much more
optional like maybe you knowneedles to cure a neck pain,
right you may need to be gettingquite detailed information
about things like what risksexist so that you can decide,
(08:34):
you know, would I in fact agreeto this treatment right Now?
The woman claimed that shedidn't know that there was going
to be some treatment of herback and she claimed that she
didn't, or treatment of her neckand she claimed she didn't have
any neck pain.
Now, that didn't get too far atthe original trial, because she
(08:54):
had written a letter speakingafter the treatment about her
neck pain and there was anintake form about what was about
to happen, and so there wassome significant issue there and
so it didn't succeed at trialand she was now trying to appeal
that decision.
Largely, the appeal seemed tohave little merit because it was
just re-arguing it, re-arguingthe case.
But the challenge here is thedoctor was saying arguing the
(09:20):
case.
But the challenge here is thedoctor was saying, look, I
should get some security forcosts because this claim appears
to have little merit.
The appeal seems to have littlemerit.
It didn't work at trial it'sunlikely to work on the appeal.
And so the doctor was askingfor what's called security for
costs in the amount of $5,000.
And that would amount to arequirement that the person
bringing a claim deposit the$5,000.
And that would amount to arequirement that the person
bringing a claim deposit the$5,000 into court, like with the
(09:42):
court registry, so if they losethey would, then there'd be
money there to pay the courtcosts of the other side.
That's the idea there.
Now the balancing and theproblem is that when the person
who would be required to pay thecosts has no money which is
usually why somebody's askingfor the security of costs to
begin with, do you know what Imean?
Like, if you're suing BillGates, you're probably not
(10:05):
asking for security for costsbecause he's going to have money
to pay the judgment if he'sunsuccessful, right, yeah, but
this particular person sheindicated she had no money and
was on income assistancedisability indicated she had no
money and was on incomeassistance disability.
And so that's where the realrub arises, because on one hand,
it seems very clear that if sheloses, there's going to be no
(10:27):
money to pay the cost of thedoctor, right.
But on the other hand, if thecourt says, well, yeah, we don't
want to have the doctor out allthe court costs, if you're
unsuccessful in your appeal, itmay mean that the person with no
money can't proceed at all,right, which also doesn't seem
too fair.
So what do you do with that?
And that's what the court ofappeal here was balancing, that
(10:47):
sort of interest of not leavingthe doctor high and dry.
If this you know claim thatappeared to have, you know, kind
of thin on its merits becauseit didn't succeed at trial, was
unlikely to succeed on theappeal, versus not, you know,
causing somebody to be unable toappeal their case because they
don't have the $5,000.
So how do you weigh that Now?
(11:09):
It looked like it was sort ofon the cusp of just being told
no, pay the $5,000, your claimor your appeal has apparently no
merit at all.
I guess you're just re-arguingit.
But the saving grace for thewoman was that she got head
before the court.
She self-represented a letterfrom her GP along with an
(11:30):
affidavit which was unsworn.
I'm clear why it was not sworn,but the affidavit assuming that
it is sworn and is accurate wasfrom the doctor's office saying
that the doctor's officer, gp,made a error and intended to
refer her to a psychiatrist, notthis other doctor.
(11:50):
Oh no, maybe that goes to thatissue of.
It seems like a bit of an oddclaim, right, this claim that,
you know, the needles got in mybones and they destroyed my
bones and that I've becomedestabilized in my whole body
and all that.
Maybe that feeds into it.
But there appears to be someember here of well, maybe
(12:10):
something did go wrong here,right, despite the intake form
and the letter and the claim,that seems to be a little bit
out there.
Maybe there's something to it.
And so the Court of Appeal saidwell, you know, this woman may
have a challenge, in partbecause if you're trying to get
fresh evidence in on an appeal,one of the things you have to
show is that you couldn't havereasonably got that evidence at
(12:31):
your trial, right, you don'twant somebody like running a
trial, losing it and saying, oh,now I'll try this other
evidence on right, if you havesomething or you could
reasonably get some evidencethat would be important, you're
required to do that off the bat.
You can't kind of wait and tryit on later.
And so the court said well, youknow, this is still, you know,
(12:54):
kind of on the margin, but youcan't say that it's doomed to
fail, right, there seems someember here to blow on, assuming
that you, assuming thataffidavit is accurate and so on.
It was unsigned at the time andso with all of that and I guess
it's the tough cases that get tothe Court of Appeal they have
to weigh up.
What do you do?
Do you require her to pay the$5,000?
It was within 30 days, was therequest.
Or do you say no and the doctoris going to have to be
(13:14):
basically on the hook if thisthing continues to have no merit
on the appeal?
What do you do?
Well, they cut it down themiddle Maybe that's a sign of a
just decision and they concludedthat there should be security
for costs, but only in theamount of $1,000.
And rather than 30 days, they'dgive her 60 days to come up
with it.
And so that's how they balancedit and we'll have to wait and
(13:35):
see what the outcome is.
If she genuinely has absolutelyno money, it may be that she
just cannot advance this appeal,but on the other hand, the
Court of Appeals said more timeand a lower amount.
You know, she legitimatelythinks she was aggrieved and
there is at least a letter, anunsigned affidavit, that said
maybe they were trying to referit to a psychiatrist not
(13:57):
somebody for her neck maybe andso we'll have to wait and see
the outcome.
But that's how security forcosts works, and that's what the
Court of Appeal was just veryrecently wrestling with, this
came out on Monday.
Adam Stirling (14:07):
Michael Mulligan from Mulligan Defense Lawyers,
legally speaking, will continueright after this.
Back on the air here at CFAX1070 as Legally Speaking
continues with Michael Mulliganfrom Mulligan Defense Lawyers.
Michael up next on our agendawith just under seven minutes or
, excuse me, under six minutesremaining in our show today.
Faith-based medical facilities,it says, refusing medically
(14:28):
assisted death and who canintervene in the case.
Michael Mulligan (14:36):
A very morally complicated and understandably
sensitive topic.
Absolutely A really interestingpiece of litigation to watch.
It's a piece of litigation.
It arose out of a fact patterninvolving a woman who was
admitted to St Paul's Hospitalin early 2022.
She was diagnosed with anadvanced form of cervical cancer
and, very sadly, by February of2023, she was approved for
(14:57):
medically assisted dying.
That was her wish.
The hospital, St Paul's, doesnot provide those services for
religious reasons and, as aresult, she was transferred to
another facility and the claimis that the transfer caused her
considerable pain and distress.
That's the fact pattern.
(15:17):
The claim is being broughtagainst the province of British
Columbia in various capacitiesand the health authority on the
basis that it's their policiesthat allowed St Paul's to deny
her the medical assistance anddie and caused her that distress
before the end of her life.
And so a sad, tragic factpattern.
(15:40):
But that's how it's framed here, and the issue being dealt with
by the Supreme Court at thisstage is who all is permitted to
come and argue about that,right?
I mean, they've got the claimbrought on behalf of the woman,
right her estate, but there's awhole host of people that want
(16:02):
to show up and argue about thatbecause it has broad societal
implications.
And so there's a long list ofpeople that wanted to
participate in the legalargument.
They included things likeCanadian Civil Liberties
Association, the BC HumanistAssociation, you know, the
Physicians for Life, theChristian Legal Fellowship, and
(16:23):
on and on it goes.
One of the groups there is, theCanadian Constitutional
Foundation that wanted tointervene, and so the judge
deciding this had to decide,well, which of these can
participate and, if so, in whatway.
And the decision about who getsto participate and it's not a
free-for-all right.
Not everyone, every busybodylawyer, can just show up and
(16:43):
start making submissions on acase because they think it's
interesting.
There's got to be some kind ofa threshold and, like in many
legal things, this has beengiven some thought in the past,
and so there's an approach to betaken.
And so the first thing a judgeneeds to think about, they need
to consider three different sortof threshold considerations.
First, the nature of the groupseeking the intervener status,
(17:05):
whether the directness of thegroup's interest in the matter.
You know, is this a busy body?
Do they have some realconnection to it?
What's going on?
And then the suitability of theissues that the person wants to
intervene on, like what is itthey have to say here?
And then, when you considerthose things, the other thing
the court has to do is they needto ask themselves, first of all
, does this group have a directinterest in it, In the sense
(17:28):
that, you know, is the decisionthat's made going to have you're
going to prejudice theirinterests or affect their
obligations, that kind of thing.
And so you know, if you lookedat a group like, let's say here,
for example, CanadianPhysicians for Life, like I can
guess by the name, what theirobjective is likely to be right.
They would say well, look, youknow, we think we have a direct
interest in it because we mightbe required to assist in the
(17:52):
medically assisted dying.
We don't want to, for example,right?
On the other hand, if you havesomebody who does, and so that
would be way in favor ofallowing a group to participate
in it, you know they're not theones being sued, but they've got
a direct interest in it.
If the group wanting tointervene does not have a direct
interest in it, they then haveto be some other considerations,
like you know.
(18:13):
How broad is theirrepresentative base Do they have
?
Are they legitimately engagedin the issues here?
Do they offer a uniqueperspective?
Right, you know, is theresomething useful in allowing
them to intervene?
And another consideration isthe parties.
Do they oppose it or are theysupportive of the additional
views being represented?
And in this case, the partiespursuing and the province were
(18:34):
supportive of all the groupsintervening, except that the
Canadian ConstitutionalFoundation and the argument made
against them allowing toparticipate was that the
submissions they wished to makewere ones that were in some
respects, sort of more generalconsiderations, because the
constitutional issues here beingargued is, first of all,
(18:57):
whether this policy amounts to abreach of the Section 2A
Freedom of Conscience andReligion or Section 7, life,
liberty and Security of thePerson.
And the Canadian ConstitutionalFoundation takes legal issue
with how narrowly Section 2B hasbeen interpreted, and their
(19:21):
position is that that sectionshould be interpreted more
broadly to include things thatthey would describe as lifestyle
choices, as opposed to a sortof a more narrow, you know,
conscientiously held beliefs.
They want a more expansivedefinition of how that section
is to be interpreted, and so thejudge ultimately concluded that
(19:43):
, you know, that really wouldwind up expanding this beyond
what was really the focus of thelitigation, and so, even though
many of those other interestswould have all had a general you
know, many of them werereligious groups that were in
support of allowing exemptions,and this was sort of an
(20:03):
alternative perspective on itthe judge concluded that it
wasn't appropriate to allow thatparticular entity to be
involved with it, and then,finally, what the judge decided
to do is to limit how all ofthese groups are going to be
allowed to participate.
It's not just you get to go inand cross-examine every witness
and so on.
The judge has allowed all theother groups to participate, but
(20:25):
only to the extent of providingwritten submissions of no more
than 10 pages, and then theywould need to get permission
from the trial judge to makeoral submissions, and they're
not allowed to call evidence orexamine witnesses or do things
like that, and they won't getcosts, even if their side wins
or loses.
And so that's how it was sortedout and that's the kind of
(20:46):
approach that a judge needs totake when they're deciding.
Do you allow some group to showup and participate in
litigation where there's thiskind of broad public policy
decision that could have animpact on people beyond the
individuals who are actuallydirectly involved in the
litigation?
So we'll have to wait and seewhat comes of that decision and
(21:06):
whether the policy allowing forreligious exemptions continues
or whether it's found to beunconstitutional.
Adam Stirling (21:13):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always.
Thanks so much.
Always great to be here.
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