OTLA e-Update
 
CASE SUMMARIES
September 29, 2014
Mangal v. William Osler Health Centre, 
2014 ONCA 639 (CanLII)

 

This is an appeal from the trial judgment of a medical malpractice action. Sharon Mangal gave birth to a healthy baby girl at William Osler Health Centre on February 16, 2004. Ms. Mangal was pronounced dead approximately 9 hours later. The family brought an action claiming that the nurses and physicians involved in her care failed to properly diagnose and treat. At trial, there were two different theories advanced regarding cause of death: the Plaintiffs' alleged that she died from complications resulting from postpartum haemorrhaging; the Defendants' alleged that she died from an Amniotic Fluid Embolism. The trial judge rejected both theories on the basis that they were inconsistent with the evidence and found that Ms. Mangal died because of a blockage of her lung that prevented blood from flowing from the right side of her heart to the left side. The trial judge found one breach of standard of care by the anaesthetist, but dismissed the action on causation. The Plaintiffs appealed, while the anaesthetist cross-appealed.

 

On appeal, the Appellants submitted that the trial judge made a palpable and overriding error in reaching a cause of death conclusion that was not advanced by the parties at trial, citing Grass (Litigation Guardian of) v. Women's College Hospital, and that the trial judge also erred in finding no causation.  The Respondents submitted, among other arguments, that the trial judge did not have to accept either party's theory of cause of death and that the trial judge's cause of death finding was amply supported by the evidence. Hourigan J.A., writing for the majority, found that the Appellants' reliance on Grass was misplaced. Hourigan J.A. held the trial judge was entitled to consider the theories advanced by both parties and reject them. Hourigan J.A. held that in determining whether the appellants had met their onus of proving causation, it was open to the trial judge to accept some, none, or all of a witness's evidence, including an expert witness's evidence. However, Hourigan J.A. found that the trial judge reached his conclusion based on the evidence at trial. After concluded that the trial judge did not err in finding no causal link and one breached the standard of care, Hourigan J.A. dismissed the appeal and cross-appeal.

 

In contrast, Feldman J.A. in her dissenting decision found that the trial judge committed the error of law described in Grass by finding a cause of death that was not put forward by either the appellants or the respondents or by the witnesses at trial, and that this cause of death was not supported by the evidence. Feldman J.A. would order a new trial on all issues. Read the full case on CanLII


 

Cromb et al. v. Bouwmeester et al.

2014 ONSC 5318 (CanLII)


 
This is a personal injury action that has been set down for trial. The Plaintiffs brought a motion seeking various forms of disclosure and production from the Defendants. The following orders sought remained outstanding at the motion: 1) a sworn Affidavit of Documents from the Defendants; attendance of the Defendants for a cross-examination on the Affidavit of Documents once served; and 3) production of materials and particulars of all surveillance of the Plaintiff, Joshua Cromb, which the Defendants have undertaken or which they may undertake up to the date of trial, including surveillance reports, unedited surveillance DVDs, written particulars surveillance, and any of the foundational working papers and materials upon which the surveillance investigators relied. Note that the Defendants had already produced two surveillance reports and related surveillance DVDs respecting the Plaintiff from FIC Investigation dated April 29, 2013 and June 12, 2013. The Defendants have refused to release the third round of surveillance of 2014 on the basis of privilege.


 

Chappel J. held that leave is not required to bring a motion to pursue the Affidavit of Documents or to address disputes respecting the Defendants' production obligations. She noted that the leave requirement set out in Rule 48.04(1) must be considered in conjunction with the mandatory nature of the disclosure obligation in Rule 30.03(1). Chappel J.  also noted that the Court has inherent jurisdiction to manage the conduct of the litigation process where the interests of justice require the Court's intervention. Leave was also not required for motions for production of surveillance reports and DVDs as a result of Rule 30.04(5). However, leave of the Court is required to pursue the request for an order requiring the Defendants to attend for cross-examination on their Affidavit of Documents and for particulars respecting surveillance materials. Given the change in circumstances, the Plaintiffs had met the test for leave. Chappel J. was unable to address the cross-examination relief because the Affidavit of Documents had not been served. Chappel J. held that the waiver of litigation privilege over the surveillance prepared by FIC Investigation previously produced resulted in an implied waiver of litigation privilege respecting other existing surveillance which FIC Investigation has created. As a result, the Defendants were ordered to provide all surveillance reports, DVDs and particulars on surveillance that are in their possession. However, Chappel J. declined to grant the Plaintiffs' request for the foundational materials underlying the surveillance reports and any future surveillance. Read the full case on CanLII

 

 

Hideg v. Evans

Unreported, Court File No. C-680-12, April 25, 2014 Endorsement


 
This is an action arising from a motor vehicle accident that occurred on February 25, 2011. The Plaintiff was examined for discovery on April 26, 2013. The Defendant sought production of the Plaintiff's facebook, which was refused. The Defendant brought a motion.

 

Gordon J. noted that the moving party must satisfy the Court with evidence that the requested production is relevant in order to be successful. He found that the two affidavits relied on by the Defendant were silent on the issue, except by reference to two exhibits of excerpts of the transcript of the Plaintiff's examination and photographs of a public facebook profile. On discovery, the Plaintiff admitted to having a facebook account and that her children posts photographs to her facebook page. The photographs are of her and her children before and after the accident, but show "nothing special" in terms of activities. They do not depict strenuous activity. Gordon J. found that the photographs are of minimal assistance, if any, on the issues in dispute and are consistent with what she said on her examination. He noted that these public photographs do not lead to the conclusion that the private photographs would add more. Gordon J. noted that cases where a production order was granted, the evidentiary record supported the relief sought and well exceeded the evidence tendered in this case. The motion was dismissed. Read the full case on the OTLA Document Bank

 

Summaries provided by Nga Dang, OTLA member and personal injury lawyer practising with Singer Kwinter.

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IN THIS ISSUE
 
CASE SUMMARIES

- Mangal v. William Osler Health Centre

- Cromb et al. v. Bouwmeester et al.

- Hideg v. Evans


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