Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Rescuer Doctrine and Security for Costs
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.
It's time for our regular segment with Michael Mulligan, barrister and solicitor, with Mulligan Defence Lawyers, legally speaking on CFAX Afternoon. Michael, how are we doing?
Michael Mulligan:Hey, good afternoon. I'm doing great. Always good to be here.
Adam Stirling:Some interesting items on the agenda today. For example I'm reading the first one here. I had no idea this existed. There's something called a rescuer doctrine, and it plays into a civil matter that we're discussing this week.
Michael Mulligan: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 with these things, right? So the idea behind the rescuer doctrine is that if a person does something negligent and it results in a circumstance where a person's going to reasonably feel that they need to rescue a person, you can be civilly liable for injuries sustained by the rescuer. So here's an example Back, I guess, when we were still responsible for car accidents. Let's say you are careless, you crash into somebody, it causes their car to flip over and catch fire, right, and some brave passerby decides to rush over there and try to save the person by getting them out of their car to flip over and catch fire, right, and some brave passerby decides to rush over there and try to save the person by getting them out of their car and they wind up getting injured. You could be responsible for that person too, right? That kind of makes sense, right? The idea is hey, you did something. It caused somebody else to try to intervene to protect somebody. You could be on the hook for that.
Michael Mulligan:Well, the case to talk about today involves that concept and involves a train. So I guess we don't have to worry about no fault. And so the fact pattern was this it was in Broadway in Chilliwack and there was a railway crossing there and there was a person who was seated in his electric wheelchair when one or more of the wheels on his wheelchair may have become stuck in a gap alongside the railway track. And you can see where this is going. A train was approaching and the plaintiff in this case she rushed over and attempted to free the wheelchair from where it was stuck with the approaching train. Very sadly, she failed. The train struck the person in the wheelchair. He died, and the train also injured the woman who went over there trying to save him. He's got a civil claim against the railway company on the basis of physical, emotional, no doubt, and financial damages resulting from that incident, and so the first interesting thing is exactly what we just talked about is that the railway company is, at least potentially liable for her injuries. Right, if the railway company was negligent or careless in terms of, I guess, how it maintained the tracks or how the train was driving, or whatever it might be and caused that circumstance, for a person in a wheelchair was stuck on the track, just like if you hit a car and it slipped over and on fire. You might expect some people to come and help. And so that's the basis of the case.
Michael Mulligan:The other interesting thing about it this case is still is ongoing now and the other interesting element to it we've talked about this before is that the defendants, the railway company, are not surprisingly, I guess, on that fact pattern trying to prevent the woman from having a jury trial. You might imagine how the woman who rushed over to save the person in the wheelchair from an approaching train is going to be a rather sympathetic figure, probably for a jury. And so the railway company, in its defense, is planning to call at least 14 experts, I guess, trying to various things accident reconstruction people and psychiatric experts and occupational therapists, and all of that, you know. Good luck to them.
Michael Mulligan:And they're making the argument that because of all that expert evidence, the case would be so intricate or complex that it couldn't be fairly tried by a jury.
Michael Mulligan:And so, while you have a general right to a jury trial, but the one side or the other could try to set that aside if they can prove to the judge that the issues couldn't be fairly tried by the jury on the basis of just how complicated they are, and so that's the argument made by the railway company, and that's what the part of the case that was just decided the judge, I think, wisely concluded that well, yes, there's a number of experts being called there the fact pattern wasn't so complicated that a jury would be unable to deal with it right, just like other personal injury cases.
Michael Mulligan:And you know that rescuer doctrine we've just discussed it in a couple of minutes and so the judge has denied the application by the railway company to prevent the woman, the rescuer, from having a jury trial, and so, because of that, she'll be able to proceed as she wished, to have the jury decide the issue, and the jury will need to decide whether she was a rescuer and then whether the railway is responsible for, was negligent and caused that accident, I guess by the maintenance of the tracks or how the train was driving, and we'll find out the answer. But I thought it was worth commenting on, because that rescuer doctrine may not be familiar to anyone and everyone, and it is something that can expand your liability if you do something that causes a dangerous circumstance where other people are going to intervene to try and help fascinating up next I'm reading it says security for costs on an appeal where the appellant appellant, excuse me has no.
Adam Stirling:I think that says money yes, that's right.
Michael Mulligan:So the uh as we've talked about in cases, if you sue somebody and lose, you are going to presumptively be on the hook for costs which are not all the cost of it but a portion of the legal expenses of the person that you sue unsuccessfully. And the reverse is true as well If you are sued and there's a good claim against you and you didn't just pay for it and you lose in court, you can be on the hook for some of their expenses. So the idea is get you to sort things out where you should, right, and so one of the challenges that can arise is where one party has no money and, in particular, this is a circumstance where there was a claim. It was a claim against a woman suing a doctor, and she made this claim. She was referred by her GP, apparently for treatment for a sore neck that was what apparently occurred here and she attended for treatment at an office of a physiatrist hopefully getting that pronounced correctly and there was some treatment involving the use of needles and the woman claimed that the needles pierced her bones and destroyed her bones and destabilized her body, claiming that they injured her spinal cord. That was her claim. Wow, that trial was a summary trial. All of that got dismissed, in large part relying upon a report of another expert who said well, first of all, the doctor said at no point did these tiny needles touch her bones. There was an expert report from another doctor saying there was just no way that could occur and as a result of that, the other part of the claim and this could be a common part of a medical negligence claim one of the requirements when you're getting medical treatment is that you provide informed consent to a procedure right and the degree of information that needs to be provided and the degree of care with which consent has to be provided is in accordance with, for example, you know how optional is this procedure right?
Michael Mulligan:If, for example, you're wheeled into the emergency room with a knife sticking out of your back or whatever, right, they're probably not going to be spending too much time discussing with you the dangers of removing the knife and even if they don't, you're probably not going to have much of a claim against them for getting the knife out of your back on the basis that, well, look, you're about to die from this knife and so you know anyone and everyone is going to say yes to get the knife out of my back, right. But when you're going in for procedures that are much more optional like maybe you know needles to cure a neck pain, right you may need to be getting quite detailed information about things like what risks exist so that you can decide, you know, would I in fact agree to this treatment right Now? The woman claimed that she didn't know that there was going to be some treatment of her back and she claimed that she didn't, or treatment of her neck and she claimed she didn't have any neck pain. Now, that didn't get too far at the original trial, because she had written a letter speaking after the treatment about her neck pain and there was an intake form about what was about to happen, and so there was some significant issue there and so it didn't succeed at trial and she was now trying to appeal that decision.
Michael Mulligan:Largely, the appeal seemed to have little merit because it was just re-arguing it, re-arguing the case. But the challenge here is the doctor was saying arguing the case. But the challenge here is the doctor was saying, look, I should get some security for costs because this claim appears to have little merit. The appeal seems to have little merit. It didn't work at trial it's unlikely to work on the appeal. And so the doctor was asking for what's called security for costs in the amount of $5,000. And that would amount to a requirement that the person bringing a claim deposit the $5,000. And that would amount to a requirement that the person bringing a claim deposit the $5,000 into court, like with the court registry, so if they lose they would, then there'd be money there to pay the court costs of the other side. That's the idea there.
Michael Mulligan:Now the balancing and the problem is that when the person who would be required to pay the costs has no money which is usually why somebody's asking for the security of costs to begin with, do you know what I mean? Like, if you're suing Bill Gates, you're probably not asking for security for costs because he's going to have money to pay the judgment if he's unsuccessful, right, yeah, but this particular person she indicated she had no money and was on income assistance disability indicated she had no money and was on income assistance disability. And so that's where the real rub arises, because on one hand, it seems very clear that if she loses, there's going to be no money to pay the cost of the doctor, right. But on the other hand, if the court says, well, yeah, we don't want to have the doctor out all the court costs, if you're unsuccessful in your appeal, it may 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?
Michael Mulligan:And that's what the court of appeal here was balancing, that sort of interest of not leaving the doctor high and dry. If this you know claim that appeared to have, you know, kind of thin on its merits because it didn't succeed at trial, was unlikely to succeed on the appeal, versus not, you know, causing somebody to be unable to appeal their case because they don't have the $5,000. So how do you weigh that Now? It looked like it was sort of on the cusp of just being told no, pay the $5,000, your claim or your appeal has apparently no merit at all. I guess you're just re-arguing it. But the saving grace for the woman was that she got head before the court. She self-represented a letter from her GP along with an affidavit which was unsworn. I'm clear why it was not sworn, but the affidavit assuming that it is sworn and is accurate was from the doctor's office saying that the doctor's officer, gp, made a error and intended to refer her to a psychiatrist, not this other doctor.
Michael Mulligan:Oh no, maybe that goes to that issue of. It seems like a bit of an odd claim, right, this claim that, you know, the needles got in my bones and they destroyed my bones and that I've become destabilized in my whole body and all that. Maybe that feeds into it. But there appears to be some ember here of well, maybe 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 said well, you know, this woman may have a challenge, in part because 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 have reasonably got that evidence at your trial, right, you don't want somebody like running a trial, losing it and saying, oh, now I'll try this other evidence on right, if you have something or you could reasonably get some evidence that would be important, you're required to do that off the bat. You can't kind of wait and try it on later. And so the court said well, you know, this is still, you know, kind of on the margin, but you can't say that it's doomed to fail, right, there seems some ember here to blow on, assuming that you, assuming that affidavit is accurate and so on.
Michael Mulligan:It was unsigned at the time and so with all of that and I guess it's the tough cases that get to the 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 the request. Or do you say no and the doctor is going to have to be basically on the hook if this thing continues to have no merit on the appeal?
Michael Mulligan:What do you do? Well, they cut it down the middle Maybe that's a sign of a just decision and they concluded that there should be security for costs, but only in the amount of $1,000. And rather than 30 days, they'd give her 60 days to come up with it. And so that's how they balanced it and we'll have to wait and see what the outcome is. If she genuinely has absolutely no money, it may be that she just cannot advance this appeal, but on the other hand, the Court of Appeals said more time and a lower amount. You know, she legitimately thinks she was aggrieved and there is at least a letter, an unsigned affidavit, that said maybe they were trying to refer it to a psychiatrist not somebody for her neck maybe and so we'll have to wait and see the outcome. But that's how security for costs works, and that's what the Court of Appeal was just very recently wrestling with, this came out on Monday.
Adam Stirling:Michael Mulligan from Mulligan Defense Lawyers, legally speaking, will continue right after this. Back on the air here at CFAX 1070 as Legally Speaking continues with Michael Mulligan from Mulligan Defense Lawyers. Michael up next on our agenda with just under seven minutes or, excuse me, under six minutes remaining in our show today. Faith-based medical facilities, it says, refusing medically assisted death and who can intervene in the case.
Michael Mulligan:A very morally complicated and understandably sensitive topic. Absolutely A really interesting piece of litigation to watch. It's a piece of litigation. It arose out of a fact pattern involving a woman who was admitted to St Paul's Hospital in early 2022. She was diagnosed with an advanced form of cervical cancer and, very sadly, by February of 2023, she was approved for medically assisted dying. That was her wish. The hospital, St Paul's, does not provide those services for religious reasons and, as a result, she was transferred to another facility and the claim is that the transfer caused her considerable pain and distress. That's the fact pattern. The claim is being brought against the province of British Columbia in various capacities and the health authority on the basis that it's their policies that allowed St Paul's to deny her the medical assistance and die and caused her that distress before the end of her life. And so a sad, tragic fact pattern. But that's how it's framed here, and the issue being dealt with by the Supreme Court at this stage is who all is permitted to come and argue about that, right? I mean, they've got the claim brought on behalf of the woman, right her estate, but there's a whole host of people that want to show up and argue about that because it has broad societal implications. And so there's a long list of people that wanted to participate in the legal argument. They included things like Canadian Civil Liberties Association, the BC Humanist Association, you know, the Physicians for Life, the Christian Legal Fellowship, and on and on it goes. One of the groups there is, the Canadian Constitutional Foundation that wanted to intervene, and so the judge deciding this had to decide, well, which of these can participate and, if so, in what way.
Michael Mulligan:And the decision about who gets to participate and it's not a free-for-all right. Not everyone, every busybody lawyer, can just show up and start making submissions on a case because they think it's interesting. There's got to be some kind of a threshold and, like in many legal things, this has been given some thought in the past, and so there's an approach to be taken. And so the first thing a judge needs to think about, they need to consider three different sort of threshold considerations. First, the nature of the group seeking the intervener status, whether the directness of the group's interest in the matter.
Michael Mulligan:You know, is this a busy body? Do they have some real connection to it? What's going on? And then the suitability of the issues that the person wants to intervene on, like what is it they have to say here? And then, when you consider those things, the other thing the court has to do is they need to ask themselves, first of all, does this group have a direct interest in it, In the sense that, you know, is the decision that's made going to have you're going to prejudice their interests or affect their obligations, that kind of thing. And so you know, if you looked at a group like, let's say here, for example, Canadian Physicians for Life, like I can guess by the name, what their objective is likely to be right.
Michael Mulligan:They would say well, look, you know, we think we have a direct interest in it because we might be required to assist in the medically assisted dying. We don't want to, for example, right? On the other hand, if you have somebody who does, and so that would be way in favor of allowing a group to participate in it, you know they're not the ones being sued, but they've got a direct interest in it. If the group wanting to intervene does not have a direct interest in it, they then have to be some other considerations, like you know. How broad is their representative base Do they have? Are they legitimately engaged in the issues here? Do they offer a unique perspective? Right, you know, is there something useful in allowing them to intervene? And another consideration is the parties. Do they oppose it or are they supportive of the additional views being represented?
Michael Mulligan:And in this case, the parties pursuing and the province were supportive of all the groups intervening, except that the Canadian Constitutional Foundation and the argument made against them allowing to participate was that the submissions they wished to make were ones that were in some respects, sort of more general considerations, because the constitutional issues here being argued is, first of all, whether this policy amounts to a breach of the Section 2A Freedom of Conscience and Religion or Section 7, life, liberty and Security of the Person.
Michael Mulligan:And the Canadian Constitutional Foundation takes legal issue with how narrowly Section 2B has been interpreted, and their position is that that section should be interpreted more broadly to include things that they would describe as lifestyle choices, as opposed to a sort of a more narrow, you know, conscientiously held beliefs.
Michael Mulligan:They want a more expansive definition of how that section is to be interpreted, and so the judge ultimately concluded that, you know, that really would wind up expanding this beyond what was really the focus of the litigation, and so, even though many of those other interests would have all had a general you know, many of them were religious groups that were in support of allowing exemptions, and this was sort of an alternative perspective on it the judge concluded that it wasn't appropriate to allow that particular entity to be involved with it, and then, finally, what the judge decided to do is to limit how all of these groups are going to be allowed to participate.
Michael Mulligan:It's not just you get to go in and cross-examine every witness and so on. The judge has allowed all the other groups to participate, but only to the extent of providing written submissions of no more than 10 pages, and then they would need to get permission from the trial judge to make oral submissions, and they're not allowed to call evidence or examine witnesses or do things like that, and they won't get costs, even if their side wins or loses. And so that's how it was sorted out and that's the kind of approach that a judge needs to take when they're deciding. Do you allow some group to show up and participate in litigation where there's this kind of broad public policy decision that could have an impact on people beyond the individuals who are actually directly involved in the litigation? So we'll have to wait and see what comes of that decision and whether the policy allowing for religious exemptions continues or whether it's found to be unconstitutional.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, legally speaking during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always. Thanks so much. Always great to be here.