Andriashek v. Weisz, 2010 ABQB 802

Court of Queen ’ s Bench of Alberta Citation: Andriashek v. Weisz, 2010 ABQB 802 Date: 20101214 Docket: 0503 15455 Registry: Edmonton Between: Adele Andriashek and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Dr. Samuel Weisz, Samuel Weisz Professional Corporation, Samuel Weisz Professional Corporation Practicing Medicine Under the Name of Samuel Weisz, Dr. Timothy J. Terry, Timothy J. Terry Professional Corporation, Timothy J. Terry Professional Corporation Practicing Medicine Under the Name Timothy J. Terry, Dr. A., Dr. A. Professional Corporation, Dr. A.

Professional Corporation Practicing Medine Under the Name Dr. A., Dr. B., Dr. B Professional Corporation, Dr. B. Professional Corporation Practicing Medicine Under the Name Dr. B. Defendants _______________________________________________________ Memorandum of Decision of L. A. Smart, Master in Chambers _______________________________________________________ The Application [ 1 ] The Defendants Weisz and Terry apply for

Summary Dismissal of this action on the basis that the Plaintiff’s action is barred

[ 1 ] The Defendants Weisz and Terry apply for

Summary Dismissal of this action on the basis that the Plaintiff’s action is barred by the expiry of the limitation period pursuant to the provisions of the Limitations Act, RSA 2000,c. L. – 12 . Subsequent to this application being heard in chambers the decision of Gayton v. Lacasse 2010 ABCA 123 ( Lacasse) was given by the Court of Appeal. Without in any way minimizing the excellent arguments put forward by both parties, the availability of

summary dismissal in my view turns on the applicability of Lacasse to the facts presented in this case, and in particular, was the limitation period suspended due to disability. [ 2 ] The relevant provisions of the Limitations Act are s. 1 (h)(ii) and s.5(2) which are as follows: 1 In this Act, (h) “person under disability” means (ii) an adult who is unable to make reasonable judgments in respect of matters relating to a claim. Persons under disability 5(1) The operation of the limitation periods provided by this Act is suspended during any period of time that the claimant is a person under disability.

(2) The claimant has the burden of proving that the operation of the limitation periods provided by this Act was suspended under this section. Argument Defendants’ Counsel argues that the facts in this case are distinguishable from Lacasse , and in particular, in her supplementary argument says: In Lacasse , the appellant alleged that she was assaulted by the respondent in February 2005 which resulted in a permanent brain injury. The issue before the Court was whether the appellant’s claim, which was brought nearly three years after the alleged assault, was barred by the Limitations Act .

More specifically, whether there were genuine issues of fact as to when the appellant knew or ought to have known that she suffered an injury that was attributable to the conduct of the respondent that warranted bringing a proceeding. Justices Conrad and O’Brien, writing for the majority, state as follows at para. 33: In conclusion, the chambers judge did not apply the test in section 3(1)(

a) of the Act as he was required to do. His reasons do not deal with the permanent brain injury. He did not make any finding as to whether the brain injury was qualitatively different from the concussion, nor did he discuss when the appellant ought, in her circumstances, to have known that she had a permanent brain injury. Nor did he address at what point the appellant knew, or in the circumstances ought to have known, that her injury (whatever it was determined to be) was connected to the respondent’s actions or warranted bringing an action.

Finally, he never addressed any of these questions, taking into consideration the appellant’s personal circumstances, including the effect of the injury on her ability to gain knowledge required to meet the three criteria set out in section 3(1)(a). The appellant in Lacasse learned more information with the passage of time. Specifically, the appellant learned some two years after the assault that she suffered from a permanent brain injury. There was also an issue as to whether the appellant knew or ought to have known that her injury was attributable to the respondent.

Finally, there was an issue concerning whether the appellant, in light of her brain injury, suffered from a disability that prevented her from making reasonable judgments in respect of matters relating to her claim, thereby suspending the commencement of the limitation period.

Unlike the fact in Lacasse , 1. Ms. Andriashek did not learn any new information respecting her claim with the passage of time. In that regard, the claim was the same in January 26, 2001 as it was when the Statement of Claim was issued four and a half years later; 2. There is no issue as to when Ms. Andriashek first knew, or ought to have known of the injury, or that the injury could be attributed to the Defendant physicians. When Ms. Andriashek met with her lawyer on June 26, 2001, she was consulting about an injury allegedly caused to her by the medical errors of the Defendant physicians; and 3. Ms.

Andriashek was able to make reasonable judgments in respect of her claim which is evidenced by the fact that she consulted competent legal counsel and continually took steps to advance her legal rights between June 26, 2001 and September 9, 2005, as set out at

section IV(

v) of the Defendants’ brief. [ 3 ] Plaintiff’s Counsel recognizes that the factual circumstances are different however argues that the principles set out in the Lacasse apply nonetheless, and in his supplementary argument says: The Plaintiff respectfully submits that the Defendants must appreciate that there were two live issues in the Lacasse decision. The Defendants’ further submissions do not clearly differential the two issues, The first issue facing the court in Lacasse was whether the chambers judge erred in finding that it was plain and obvious that the discoverability provisions of section 3(1)(

a) would bar the action. However, the Plaintiffs submit that what is much more applicable to the case at bar is the second issue. The second issue was whether the evidence raised genuine issues for trial with respect to whether the appellant suffered from a disability that would have the effect of suspending the limitation period under

section 5 of the Limitations Act . Although the Court of Appeal in Lacasse differed in their views concerning the first issue, the judgment demonstrates consensus on the second issue, which is the same issue as in the case at bar. Justice Slatter, although not agreeing with the majority of the court concerning the first issue, noted that the burden of proving disability is on the claimant; however, at para. 65 the learned Justice held that “the appellant was not required to establish her disability in chambers. In order to resist

summary dismissal she only needed to show a genuine issue for trial.” Concerning the evidence that Justice Slatter relied on to determine that there was a genuine issue concerning disability, he wrote at para. 67 that: The evidence put forward by the appellant is sparse, but sufficient to meet the burden on her at this stage. There is an application for funding from a government program that states she has a disability.

There is a handwritten note (on a prescription pad) from her family physician, not sworn to by the doctor himself, which merely states in a conclusory way that the appellant is disabled, without setting out the legal test. The appellant also deposes to her own opinion that she is disabled.

The majority of the court agreed with Justice Slatter concerning the disability issue, and wrote at para. 3 as follows: We agree with our colleague that the evidence raises genuine issues for trial with respect to whether the appellant suffered from a disability that would have the effect of suspending the commencement of the limitation period under

section 5 of the Act. The majority also held at para. 36 that:

We agree with Slatter J.A. that the appellant did not have to prove she was a “person under disability” to repel the

summary judgment application and the chambers judge placed too high a burden on the appellant. In an application for

summary judgment the question is simply whether the record raises a genuine issue for trial. We also agree with our colleague that there was enough evidence before the chambers judge to raise a genuine issue for trail about whether Ms. Gayton was a “person under disability” for purposes of

section 5 of the Act. The Plaintiff submits that the evidence of disability in the case at bar is far more compelling than was the case in Lacasse . The Plaintiff’s treating psychologist, Dr. Ganam, specifically noted that the Plaintiff “was not psychologically capable of taking legal action” before October of 2003. The Plaintiff submits that the latter is far more compelling than an application for government assistance and a handwritten note on a prescription pad from a family physician, which were sufficient for the court in Lacasse to determine that there was a triable issue.

The Defendants, in their submissions concerning Lacasse , argue that the Plaintiff was able to make reasonable judgments in respect of her claim which is evidenced by the fact that she consulted competent legal counsel and continually took steps to advance her legal rights. Although the Plaintiff deals with this argument in her written brief, Justice Slatter dismissed a similar argument in Lacasse , which also involves a

summary judgment situation, at para. 68 as follows: As the respondent points out there is other evidence on the record suggesting the appellant was able to make decisions with respect to her claim, particularly the fact that she was actually able to issue the claim while self-represented and allegedly too disabled to do so: K.L.B. v. British Columbia , at para. 55. The

summary judgment process is not designed to resolve factual issues of this sort. There is still a genuine issue to be tried. Decision [ 4 ] Defendants’ Counsel is quite correct in her argument that the circumstances are distinguishable but in a my view the Plaintiff has presented sufficient evidence to support a claim of “disability” and the suspension of time under the Limitations Act . The issue of the Plaintiffs mental and physical capacity to prosecute her claim even in light of consultation with legal counsel must be fully explored.

Furthermore, if she is determined to have been disabled there is the issue of over what time period that was the case. And, if it is determined that her disability was not for the entire time period up to October, 2003, then how is the period(

s) of disability counted or applied to determine the extent of the suspension of time running under the Limitations Act . The full facts and circumstances and their application to the relevant provisions of the Limitations Act presents a complex matrix unsuitable for

summary determination in a chambers application based on affidavits despite skillful cross-examination on those affidavits. [ 5 ] The Plaintiff’s claim cannot be said to be beyond doubt and this remains a genuine issue for trial. The Plaintiff shall have her costs of the application. Heard on the 6 th day of April, 2010. Dated at the City of Edmonton, Alberta this 14 th day of December, 2010. L. A. Smart M.C.C.Q.B.A.

Appearances: Kenneth Holmstrom Chomicki Baril Mah LLP for the Plaintiffs Taryn Burnett Gowling Lafleur Henderson LLP for the Defendants