Malette v. Shulman
Malette v Shulman et al (1990), 72 O.R. (2d) 417 (ON CA)
M is a Jehovah’s Witness who was in a car accident. S was the doctor attending her. S
was made aware of a card on M's person stating that she would refuse blood transfusions
for religious reasons. S ignored this directive, and gave her blood. After recovery, M sued
S for battery.
Did M consent to transfusion?
A doctor is not free to disregard advance instructions any more that he can disregard
instructions given at the time.
→ S had no reason to doubt the validity f the card (clear, concise statement
of religious belief).
→ Clearly, M foresaw the need for blood transfusions because she
went through the exercise of preparing and keeping the No-Transfusions card.
actions suggest the decision was made with a clear understanding of the risks.
Even in a case of emergency, a health care professional cannot override the limits a
patient places on her consent.
→ The doctrine of informed consent does not extend to
informed refusal: "The right to refuse treatment is an inherent component of the
supremacy of the patient’s right over his own body. That right to refuse treatment is not
premised on an understanding of the risks of refusal."
→ Importance of respecting the
decisions made by the patient.
In favour of plaintiff M; patient did not consent to transfusion.
Hill v. Church of Scientology,  2 SCR 1130
Manning and Church of Scientology held a press conference to publicly announce
criminal contempt proceedings they were starting against Hill, a Crown attorney. Found
liable for libel at trial.
Is the common law of defamation inconsistent with the guarantee of freedom of
expression, and if so, can it be scrutinized? Ratio:
Charter values (in private litigation) are balanced differently than Charter rights. There is
no formal s.1 analysis. Courts always have power to modify common law to bring into
conformity with the Charter.
*Charter is a “restatement of fundamental values” which guide and shape democratic
system, so court can incrementally revise the common law to bring in line
→ They will
not go further than necessary when evaluating Charter values
*Most private litigants can
do is claim the common law is inconsistent with Charter values, not Charter rights
(because rights do not exist absent state action)
→ This avoids subjecting all court order
to Charter scrutiny
*A balancing between principles
→ More flexible than a traditional
→ Charter values are balanced against the principles underlying the
*Party alleging common law is inconsistent bears onus of proof that:
1. The common law fails to comply with Charter values
→ 2. The common law should
In 2010, court changed the common law of defamation to add the defence of responsible
communications in matters of public interest (addressing libel chill).
M'Alister (or Donoghue) v Stevenson  AC 562 (HL)
Friend of Donoghue (P) purchased a dark, opaque bottle of ginger-beer and gave it to P. P
drank some before her friend discovered a decomposed snail in the bottle. P sued the
manufacturer for psychological harm (shock) and gastroenteritis (stomach flu).
Does the manufacturer of a product have a legal duty to the consumer to take reasonable
care that the product is free from defect likely to cause injury?
Classical neighbour principle.
The manufacturer of a product has a legal duty to the consumer to take reasonable care
that the product is free from defect likely to cause injury.
→ Classical neighbour principle: you must not injure your neighbour – where
a neighbour is any person so directly affected by your act that you must keep them in
mind when acting or omitting to act.
→ The manufacturer put food into a container with the intention of having it be opened by a consumer; the consumer could not inspect the
contents because of the type of container. The relationship is close enough for a duty of
care to arise. Therefore the manufacturer demonstrated negligence when a snail was
allowed into the bottle.
→ Also, a consumer should have recourse against a
manufacturer that provides a flawed product to the consumer – to deny such a legal
remedy would be a social wrong
→ There is no special duty attaching to the manufacture of food
found in statute, and there was no contract between the consumer and the
→ It is a slippery slope to say that a manufacturer should be responsible
for all the subsequent uses and consequences of its products.
→ It would not be
practical for the manufacturer to be responsible for the quality of every single item it
Appeal allowed in favour of the plaintiff.
→ “The rule that you are to love your neighbour becomes in law, you must
not injure your neighbour; and the lawyer’s question, Who is my neighbour? Receives a
restricted reply. You must take reasonable care to avoid acts or omissions which you
reasonably foresee would be likely to injure your neighbour. Who, then, in law is my
neighbour? The answer seems to be – persons who are so closely and directly affected by
my act that I ought reasonable to have them in contemplation as being so affected when I
am directing my mind to the acts or missions which are called into question.”
John et. Al. v. Flynn et al.
In those circumstances Eaton Yale owed a duty of care to Flynn, and by logical
extension, to other highway users; Mayfield Investments Ltd. v Stewart et al.
There was no break in the chain of causation to relieve the duty of care or to end the
The application is dismissed.”
Arndt v Smith,  2 SCR 539 (Link)
→ Plaintiff contracted chickenpox when she was pregnant
→ Defendant doctor did not
fully advise her about the risk to her fetus
→ Plaintiff gave birth to daughter with
→ Plaintiff sued the physician for costs associated with rearing her
daughter At Trial:
→ Even if she was warned of the risks, plaintiff would not have aborted the
→ Evaluated her testimony at trial that should would have aborted, with evidence
that she desired a child, was sceptical of mainstream medical intervention and that an
abortion in the second trimester held increased risks
→ No causation: Loss was not
caused by doctor’s failure to advise property of risk
→ Trial applied wrong test and ordered a new trial
Was the loss caused by the doctor’s failure to advise property of risk?
→ What is the
appropriate test of causation?
Determining causation in cases of medical risk and a duty to inform requires an
application of the modified objective test
→ Courts should consider what the reasonable
patient in the plaintiff’s circumstances would have done if faced with the same situation
→ Court should apply the “modified objective test” set out in Reibl v
Hughes: The court should consider what the reasonable patient in the plaintiff’s
circumstances would have done if face with the same situation (must consider any
particular concerns of the patient; and any special considerations affecting the particular
patient in determining whether the patient would have refused treatment if given all
→ Problem with subjective test: Can’t use subjective test because the
plaintiff will always testify that the failure to warn was the determining factor in their
decision to take a harmful cause of action
→ Problem with objective test: Might result
in undue emphasis on medical evidence (a test that defers completely to medical wisdom
– can it be reasonable refused?)
→ Can infer from the evidence that a reasonable person
in plaintiff’s position would not have terminated pregnancy
→ Failure to disclose did
not affect the plaintiff’s decision to continue pregnancy; and therefore did not cause
2. McLachlin (concurring)
→ Trial judge must look at all evidence to determine what
course of action the plaintiff would have taken
→ Trial judge used the right test
(subjective test): Considered what the plaintiff said she would do; and then considered all
→ Also information about what the medical profession would
have recommended is relevant and supports trial judge’s decision
→ Why the subjective
test? It is a factual, not hypothetical inquiry. E.g. if person gets hit by car and breaks leg,
we do not ask whether a reasonable person wo