L.M. v. Davison, 2011 ABQB 228

Court of Queen ’ s Bench of Alberta Citation: L.M. v. Davison, 2011 ABQB 228 Date: 20110405 Docket: 0703 02507 Registry: Edmonton Between: L.M. Plaintiff - and - Charles B. Davison Defendant Restriction on Publication Identification Ban – See the Child Welfare Act ,

section 25 (as in force immediately before November 1, 2004). Except with the consent of the Court, no one may publish any report of a proceeding regarding a child under this Act that discloses the name or identifying information of the child or the child ’ s guardian. NOTE: This judgment is intended to comply with the restriction so that it may be published. Corrected judgment: A corrigendum was issued on April 8, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of

W. Breitkreuz, Master in Chambers _______________________________________________________ [ 1 ] This is an application by the Defendant for

summary judgment. The Defendant argues that the Plaintiff’s action against him is statute barred under s. 3 of the Limitations Act , R.S.A. 2000, c. L-12. [ 2 ] The Plaintiff makes a parallel application, seeking

summary judgment against the Defendant. That application was not strenuously argued before me, and therefore I decline to come to a decision on its outcome. This decision focuses solely on the Defendant’s application for

summary judgment. I. Facts [ 3 ] The Plaintiff, L.M., has filed an action against the Defendant, Charles B. Davison, alleging professional negligence in his capacity as her lawyer in the conduct of a lawsuit filed in 1992 (“the 1992 action”). [ 4 ] In the 1992 action, the Plaintiff sued her deceased foster father, as well a number of other parties, for sexual abuse that she alleged took place at the hands of her foster father. This action was commenced in January 1992 in behalf of the Plaintiff by another law firm. In May 1992, the Defendant took over conduct of the lawsuit. [ 5 ] The defendants in the 1992 action applied for

summary judgment against the Plaintiff on the basis of a limitations defence, claiming that the Plaintiff’s action was statute barred. [ 6 ] The Defendant obtained expert reports from Dr. Cheryl Malmo, dated April 14, 1999 and January 24, 2000, both of which indicated that the alleged abuse had serious psychological ramifications for the Plaintiff. In the January 24, 2000 report, Dr. Malmo stated the following: 9. It is my professional opinion that the Limitations of Actions should be waived in the case of Ms. [M.] As she would not have had the emotional or psychological resources to act on her own at the time.

I also believe it should be waived because the psychological effects of Ms. [M.]’s abuse (as outlined in my report of April, 1999) would have impeded her ability to take action until such time as she did so. [ 7 ] On February 8, 2000, Justice MacCallum granted the defendants’ application for

summary judgment. The Defendant appealed MacCallum’s J.’s decision, but the Court of Appeal upheld the decision to summarily dismiss the Plaintiff’s action on June 6, 2001. The decision was not further appealed. [ 8 ] In February 2005, the Plaintiff, and others, commenced an action against Her Majesty the Queen in Right of Alberta for damages relating to the alleged abuse that took place while the Plaintiff was in foster care. This lawsuit contained allegations similar to the ones in the 1992 action. [ 9 ] On February 26, 2007, the Plaintiff commenced this professional negligence action against the Defendant. II. The Defendant’s Position (Applicant for

Summary Judgment)

[ 10 ] The Defendant argues that the Plaintiff’s claim against the Defendant for professional negligence should be summarily dismissed because it was filed outside the two-year timeframe permitted by s. 3 of the Limitations Act . [ 11 ] The Defendant claims that in the professional negligence action, the alleged injury would have been caused on February 8, 2000, when MacCallum J. dismissed the 1992 action, and that this injury was reaffirmed on June 8, 2001 when the Court of Appeal upheld MacCallum J.’s decision. The Defendant provided a detailed reporting letter to the Plaintiff after MacCallum J.’s decision.

In it, he told her the reason the 1992 action was dismissed was because Dr. Malmo did not give any evidence that the Plaintiff had a disability that would deprive her of the power to choose to commence legal proceedings or not.

The Defendant also notes that the Plaintiff was present in court when the Court of Appeal rendered its decision, upholding the lower court decision to dismiss the action on the basis that there was no evidence that the Plaintiff had a disability that would justify the extension of the limitation period. [ 12 ] The Defendant also claims that the Plaintiff knew or ought to have known that she had a claim against the Defendant in 2004 for negligence. The Defendant bases this argument on an admission the Plaintiff made in examinations for discovery in 2004.

The relevant portion of the exchange between counsel for the Defendant and the Plaintiff is as follows: Q. What was it that caused you to discover that you had a claim against Mr. Davison? A. Robert Lee brought it to my attention that I could. Q. Without getting into what you discussed with Mr. Lee, but it was on the basis of consulting counsel? A. Yes. Q. Okay. And we have agreed that Mr. Davison stopped acting for you in 2011, correct? A. Yes. Q. And did you consult with counsel in 2002 or 2003 or 2004 or 2005 about what it was that Mr. Davison had done for you in the first lawsuit? A.

In 2004, I discussed it with Robert Lee when I first originally came to Robert Lee and discussed it. Q. And that was in 2004? A.

Yes, when I first came to Robert Lee. [ 13 ] To summarize the Defendant’s argument, he argues that the Plaintiff did not commence the action against him for professional negligence until February 26, 2007 and that this was seven years after the Plaintiff knew the 1992 action was dismissed because there was no evidence that she had a disability that justified the extension of the limitation period, five and a half years after the Court of Appeal decision, and more than two years after the Plaintiff consulted with Mr. Lee about bringing an action against the Defendant. III. The Plaintiff’s Position (Respondent in

Summary Judgment Application) [ 14 ] The Plaintiff’s argument in resisting the

summary judgment application rests on two main grounds.

[15] The first is that the Plaintiff was not aware until after September 2009 that Dr. Malmo had told the Defendant in her reports in1999 and 2000 that she believed the Plaintiff was disabled. The Plaintiff claims that although the Defendant did tell her that the reasonMacCallum J. dismissed the 1992 action was because there was no evidence before the court that she was disabled, the Plaintiff did notknow until 2009 that the Defendant knew at the time that Dr.

Malmo believed her to be disabled. [16] The second argument rests on the idea that the Plaintiff’s disability, relevant for the purposes of extending the limitationperiod, has been ongoing and continues to this day such that she was incapable of commencing legal proceedings against the Defendantuntil she actually did so. In support of this argument, the Plaintiff relies on Dr. Malmo’s two reports from 1999 and 2000, as well as areport dated September 25, 2009, Dr. Malmo’s October 19, 2009 affidavit, and the April 23, 2010 affidavit and February 26, 2010 andApril 7, 2010 reports of George Lucki.

These materials all detail the Plaintiff’s condition and state that she was, and continues to bedisabled as a result of the alleged abuse. [17] The Plaintiff relies on the Supreme Court’s decision in M.(K.) v. M.(H.), (SCC), [1992] 3 S.C.R. 6, 96 D.L.R (4th) 289 for the proposition that the victims of sexual abuse are granted an extension for the purposes of commencing litigation relatedto the abuse.

At para. 14, the Court stated: “The tort claim, although subject to limitations legislation, does not accrue until the plaintiff isreasonably capable of discovering the wrongful nature of the defendant's acts and the nexus between those acts and her injuries.” IV. Analysis [18] The test for

summary judgment is stated by the Court at para. 24 of Murphy Oil Co. V. Predator Corp., 2006 ABCA 69, 55 Alta. L.R. (4th) 1:

Summary judgment against a plaintiff, or a plaintiff by counterclaim, will only be granted where there is no genuine issue for trial. Itmust be "plain and obvious" that the action cannot succeed: Boudreault v. Barrett (1998), 219 A.R. 67, 1998 ABCA 232 at para. 9;Prefontaine v. Veale (2003), 339 A.R. 340, 2003 ABCA 367 at para. 9. Other formulations of the burden to be met by a moving partyinclude the "beyond doubt" standard. When a chambers or case management judge must necessarily assess the quality and weight ofevidence to come to a decision, the failure of the case is not beyond doubt: Lui v. Tangirala (2004), 131 A.C.W.S. (3d) 627, 2004ABCA 171 at para. 2. [19] On an application for

summary judgment, the Court must follow a two stage analysis as set out by the Court at para. 25 inMurphy Oil: “In the first, the moving party must adduce evidence to show that there is no genuine issue for trial. Once the moving partyhas met that burden, the responding party may adduce evidence to persuade the court that there remains a genuine issue to be tried.” [20] In relation to the question of disability, the Limitations Act reads as follows: 1 In this Act ... (h) "person under disability" means (

i) a represented adult as defined in the Adult Guardianship and Trusteeship Act or a person in respect of whom a certificate of incapacityis in effect under the Public Trustee Act, or (ii) an adult who is unable to make reasonable judgments in respect of matters relating to a claim; ...

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. [ 21 ] In Gayton v. Lacasse , 2010 ABCA 123 , 482 A.R. 179, the Court dealt with the issue of the Plaintiff’s alleged disability and the extension of the limitation period as a result of it.

In that case, the chambers judge summarily dismissed the plaintiff’s claim on the basis that she did not meet the test under s. 5 of the Limitations Act to establish that she was under a disability that entitled her to a suspension of the limitation period. [ 22 ] The Court of Appeal allowed the plaintiff’s appeal and Slatter J.A., in concurring reasons, stated at para. 66: “...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.” [ 23 ] Slatter J.A. went on to state at paras. 67 and 68: 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. 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. [ 24 ] Following the two stage analysis for a

summary judgment application, I find that the Defendant has met his burden on the first stage by showing that more than two years had passed since the Plaintiff knew or ought to have known about her claim against the Defendant. However, that does not end the matter. It then falls to the Plaintiff to demonstrate sufficient evidence of disability to show there is a genuine issue remaining to be tried. [ 25 ] I find that the Plaintiff has done so. The Plaintiff has put forward the sworn evidence of two different psychologists, stating that she was disabled at the relevant times.

This evidence was not controverted by the Defendant. Based on the decision of the Court of Appeal in Gayton , I find that this evidence meets the burden on the Plaintiff at this stage in the proceedings. The Plaintiff has demonstrated that whether she has a disability which excuses her tardiness in commencing proceedings is a genuine issue to be tried. [ 26 ] Additionally, as in Gayton , while the Defendant has adduced evidence to suggest that the Plaintiff was able to make decisions about her claim, or had some knowledge of a possible claim in 2004, a

summary judgment application is not the forum to resolve these sorts of factual issues. The question of the Plaintiff’s disability is a issue that requires a trial to determine. V. Conclusion [ 27 ] The Defendant’s application for

summary judgment is dismissed. The Plaintiff’s action may proceed. [ 28 ] The Plaintiff is entitled to costs of this application.

Heard on the 15 th day of December, 2010. Dated at the City of Edmonton, Alberta this 5 th day of April, 2011. W. Breitkreuz M.C.C.Q.B.A. Appearances: Robert P. Lee Barrister and Solicitor for the Plaintiff Stuart Weatherill Emery Jamieson LLP for the Defendant _______________________________________________________ Corrigendum of the Reasons for Decision of W. Breitkreuz, Master in Chambers _______________________________________________________ A Restriction on Publication notice was added and the plaintiff’s name was replaced with initials to comply with the publication ban.