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Management and Organizational Studies
Management and Organizational Studies 2276A/B
Phillip King

Malette v. Shulman Malette v Shulman et al (1990), 72 O.R. (2d) 417 (ON CA) Facts: 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. Issue(s): Did M consent to transfusion? Ratio: A doctor is not free to disregard advance instructions any more that he can disregard instructions given at the time. Analysis: Donnelly J:
 → 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.
 → Her 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. Holding: In favour of plaintiff M; patient did not consent to transfusion. Hill v. Church of Scientology, [1995] 2 SCR 1130 Facts: 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. Issue(s): 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. Analysis: *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 s.1 analysis
 → Charter values are balanced against the principles underlying the common law
 *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 be modified Comments: 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 [1932] AC 562 (HL) Facts: 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). Issue(s): 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? Ratio: 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. Analysis: Majority:
 → 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 Minority (Dissent):
 → There is no special duty attaching to the manufacture of food found in statute, and there was no contract between the consumer and the manufacturer.
 → 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 produces Holding: Appeal allowed in favour of the plaintiff. Comments: Lord Atkin:
 → “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. Result: 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 foreseeable risk. The application is dismissed.” Arndt v Smith, [1997] 2 SCR 539 (Link) Facts: → 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 congenital defects
 → 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 child.
 → 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 On Appeal
 → Trial applied wrong test and ordered a new trial Issue(s): Was the loss caused by the doctor’s failure to advise property of risk?
 → What is the appropriate test of causation? Ratio: 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 Analysis: 1. Majority
 → 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 information)
 → 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 financial losses 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 external circumstances
 → 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
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