Rozak (Estate), 2011 ABQB 239

Court of Queen ’ s Bench of Alberta Citation: Rozak (Estate), 2011 ABQB 239 Date: 20110407 Docket: 0503 17780 Registry: Edmonton Between: Brad Brogden, Administrator Ad Litem of the Estate of Brooklyn Alyssa Rozak Plaintiff - and - Michael Demas, Carl Blashko, Darren Neilson, John Doe, Capital Health, operating a hospital known as The University of Alberta Hospital, Caritas Health Group, operating a hospital known as The Grey Nuns Hospital and the Governors of the University of Alberta Defendants Corrected judgment: A corrigendum was issued on April 11, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice R.A. Graesser _______________________________________________________ I. Introduction [ 1 ] This is an application by Drs. Neilson, Ostolosky and Din (the “doctors”) by way of an appeal from the decision of Master Wachowich dated June 1, 2010 dismissing their application to compel the Plaintiff to answer certain objected-to undertakings from his examination for discovery. Mr. Brogden cross-appeals Master Wachowich’s decision with respect to the two objected-to undertakings he was required to answer.

[ 2 ] The application before Master Wachowich turned on relevance, solicitor - client privilege and solicitor’s work product privilege. II. Background [ 3 ] The Plaintiff is the widower of the late Brooklyn Alissa Rozak and is the Administrator Ad Litem of her estate. [ 4 ] Ms. Rozak had been admitted to the Grey Nuns Hospital in Edmonton on May 30, 2005 for psychiatric observation and treatment. She was discharged on June 3, 2005.

Later that day, she was taken to the University of Alberta Hospital by her husband because of concerns for her mental well-being and safety. [ 5 ] At the University Hospital, she was initially seen by Dr. Neilson, an emergency doctor. He concluded that she should have a psychiatric consultation, and she was then seen by a resident, Dr. Din, and the staff psychiatrist, Dr. Ostolsky. [ 6 ] Following the psychiatric consultation, Ms. Rozak was discharged later that evening. [ 7 ] On June 5, 2005, Ms. Rozak committed suicide. [ 8 ] Mr.

Brogden sought legal advice in August, 2005 and signed consents for the release of Ms. Rozak’s medical records and information. Mr. Brodgen’s counsel wrote the University Hospital on November 8, 2005 requesting patient files and records. [ 9 ] The University Hospital records were provided to counsel under cover of a November 14, 2005 letter. The records clearly show that “Dr. Neilson” requested a medical consultation from “Dr. Ostolosky” on June 3, 2005. [ 10 ] On the Outpatient Chart, there is a signature under “Doctor” but no printed name. Dr. Kevin Neilson has deposed that is his signature.

Whether his signature is legible is in issue on the underlying application. [ 11 ] On a similar form in the records, there are notes and above “Consultant’s Signature” is a signature and the printed name “Omar Din”. Whether either the signature or printed name is legible is in issue on the underlying application. [ 12 ] A Statement of Claim was issued on June 1, 2007, naming Dr. Michael Demas, the University Hospital and the Grey Nuns Hospital. It was amended later that day to include Drs. Carl Blashko and Darren Neilson. The action has been since discontinued against Dr.

Darren Neilson. [ 13 ] The Statement of Claim was not immediately served. It was served on the University Hospital on April 24, 2008 and on Dr. Darren Neilson on May 6, 2008. [ 14 ] Shortly after the University Hospital had been served, in-house counsel notified Mr. Brogden’s counsel that the wrong Dr. Neilson had been sued. Dr. Darren Neilson was an emergency doctor at the Grey Nuns Hospital, and had no dealings at all with Ms. Rozak. Rather, his brother, Dr. Kevin Neilson, an emergency doctor at the University Hospital, was the emergency doctor who had seen Ms. Rozak on June 3, 2005.

[ 15 ] Following that correspondence, Mr. Brogden’s counsel had the Amended Statement of Claim served on Dr. Kevin Neilson on July 2, 2008, along with a letter advising Dr. Kevin Neilson of Mr. Brogden’s intention to amend the Statement of Claim to substitute him for his brother Darren as a defendant. [ 16 ] On November 3, 2008, Dr. Ostolosky was served with the Amended Statement of Claim, along with a letter advising her of Mr. Brogden’s intention to amend the Statement of Claim to add her as a defendant. [ 17 ] An application was filed on November 14, 2008 on behalf of Mr.

Brogden to amend the Amended Statement of Claim by substituting Dr. Kevin Neilson for Dr. Darren Neilson and adding Dr. Ostolosky. [ 18 ] Mr. Brogden had Dr. Din served with the Amended Statement of Claim in mid-February, 2009 along with notice that he intended to add Dr. Din as a defendant. [ 19 ] Drs. Kevin Neilson, Ostolosky and Din have objected to the amendments to the Amended Statement of Claim and have raised the Limitations Act , R.S.A. 2000, Ch. L-12. [ 20 ] Mr.

Brogden was cross-examined on his affidavit in support of his application for the amendments, and a number of undertakings were requested but refused. [ 21 ] Following the refusals, counsel for the doctors applied to compel answers to the objected-to undertakings. Master Wachowich gave oral reasons for decision and ordered that Mr. Brogden provide answers to two of the undertakings. He declined to order answers to the rest. [ 22 ] The doctors appeal the dismissal of some of the requested undertakings; Mr. Brogden cross-appeals with respect to the two he was required to answer.

Over the course of preparing for this appeal, the parties have reduced the number of undertakings in dispute. III. Standard of Review [ 23 ] The parties are agreed that the issues in the appeal are questions of law, and thus attract a correctness standard of review. IV. Undertakings in Dispute [ 24 ] The following undertakings are the ones still in dispute: Undertaking 6: Advise if there was more information received or obtained to determine that Carl Blashko and Darren Neilson should be added as defendants prior to filing the Amended Statement of Claim.

Undertaking 8: Make inquiries and determine what steps were taken on Brad Bogden’s behalf to determine why Darren Neilson was named as defendant and what further determinations, if any, were made to confirm that he was properly named a defendant between June 4, 2005 and June 1, 2008.

Undertaking 9: Make inquiries to determine what steps were taken on behalf of Brad Brogden between June 4, 2005 and June 1, 2008 to determine whether any other physician should be named as defendants in the lawsuit, particularly Dr. Ostolosky and Dr. Din. Undertaking 10: Make inquiries to determine whether or not there was anything preventing Brad Brogden’s counsel from contacting the University of Alberta Hospital at any time between the time they were retained in August of 2005 until June 1, 2008 to ake inquiries with respect to the names of the physicians that were involved in caring for Ms.

Rozak on June 3, 2005. Undertaking 13: Make inquiries of Brad Brogden’s counsel as to what medical directories are available in their office and did have available in their office between August of 2005 and June 1, 2008. Undertaking 16: Make inquiries and determine when it was that Brad Bogden first advised counsel that he had a recollection of Ms. Rozak being seen by an intern or resident of the middle eastern descent. Undertaking 22: Make inquiries with Brad Bogden’s counsel to determine if there was something preventing him from determining or recognizing that there was a resident involved in Ms.

Rozak’s care at any point after they received the records on November 16, 2005. [ 25 ] The Master ordered answers to 13 and 16, and refused to order answers to 6, 8, 9, 10 and 22. V. Issues [ 26 ] This appeal only deals with the objected-to undertakings, and not the underlying application to amend the Amended Statement of Claim. [ 27 ] The issues on this appeal relate to whether the undertakings may be directed on questioning on an affidavit, the relevance of the requested undertakings, and whether Mr.

Brogden should be required to answer some or all of them having regard to solicitor and client privilege, as well as his solicitor’s litigation and work product privilege. [ 28 ] Rule 6.7 deals with questioning. It provides: A person who makes an affidavit in support of an application or in response or reply to an application may be questioned, under oath, on the affidavit by a person adverse in interest on the application, and (

a) rules 6.16 to 6.20 apply for the purposes of this rule, and (

b) the transcript of the questioning must be filed by the questioning party. [ 29 ] Old Rule 314(2), which was in effect when the questioning took place, provided: The deponent may be required to attend in the same manner as a party being examined for discovery and the procedure on his examination is subject to the same Rules, so far as they are applicable, as the Rules that apply to the examination for discovery of party.

[30] Having regard to the foundational rules, I see no purpose or basis to change the scope of questioning on an affidavit in supportof an application: questions relevant and material to the underlying application will be permitted and if refused, will be ordered to beanswered: Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co., (AB KB), [1981] 4 W.W.R. 760 (Alta Q.B.), at paras. 4and 6 155569 Can. Ltd. v. 248524 Alberta Ltd., (1989) (AB KB), 99 A.R. 100, (Q.B. Master) at paras. 11-13 Bland v. Canada (National Capital Comm.),

(1989) CarswellNat. 170 (F.C.T.D.), at para. 16 Dow Chemicals Canada Inc. v. Shell Chemicals Canada Inc., (2008), 2008 ABQB 671 , 97 Alta L.R. (4th) 182 (Q.B. Master)at para. 5 [31] Repetitive and abusive questions have never been allowed; questioning must now be both relevant and material to theapplication having regard to the narrowing of the scope of questioning generally from “touching the matters in question” to “relevant andmaterial”. [32] Nevertheless, to determine relevance and materiality, the issues on the underlying application must be reviewed. VI.

Undertakings on Questioning on Affidavits [33] The threshold issue on this application is whether (or the extent to which) an affiant may be required to undertake to providefurther evidence or documents. There is much authority to suggest that an affiant may not be required to inform him or herself followingthe questioning on questions that could not be answered - following up on answers “I don’t know”. [34] Merck Frosst Canada Inc. v.

Canada (Minister of Health), 1997 CarswellNat 2661 (F.C.T.D, holds that “absence ofknowledge is an acceptable answer; the witness cannot be required to inform him or herself” (at para. 4). [35] That is an often-quoted statement, and has been followed in Alberta Treasury Branches v. Leahy, 1999 ABQB 829 ,1999 CarswellAlta 1027 (Q.B.), and Bruno v. Canada (Attorney General), 2003 CarswellNat 3375 (F.C.T.D.

Prothonotary). [36] However, there are also a number of cases in Alberta where affiants have been require to inform themselves, and provideanswers following the questioning. [37] The most detailed analysis of undertakings on questioning on affidavits is Master Prowse’s decision in Dow ChemicalCanada Inc. v. Shell Chemicals Canada Ltd., 2008 ABQB 671 (Master).

He concluded at para. 5: After a review of the relevant case law, I have come to the conclusion that the court should be reluctant to direct that undertakings beprovided by a party proffering a deponent who is unable to answer all questions put to the deponent during a cross-examination. Itshould be more difficult to have undertakings directed on a cross-examination than at examinations for discovery. Undertakings shouldonly be directed on a cross-examination where:

(

a) the deponent has referred to information or documents in the affidavit, or could only have made the assertions contained in the affidavit after having reviewed the information or documents being sought, or (

b) the undertakings relate to an important issue in the application, and the provision of such information: (

i) would not be overly onerous, and (ii) would likely significantly help the court in the determination of the application. [ 38 ] I agree with his conclusions. The statement that an affiant cannot be required to inform him or herself is not the law in Alberta. An affiant being questioned is in a similar position to that of a witness being cross-examined at trial. Witnesses are expected to have taken reasonable steps to inform him or herself as to the subject matter on which they are expected to testify.

They are expected to bring with them all records in their possession or control which are relevant to the issues in the lawsuit. They may be cross-examined not only on their evidence in chief, but on any other matter within their knowledge. [ 39 ] One key difference is that witnesses at trial does not usually have the ability to inform themselves during cross-examination on questions they are unable to readily answer.

That may work to their great disadvantage, as a witness who is unable to provide an answer to something reasonably expected to be in his or her knowledge may be seen as unprepared, unhelpful, unintelligent, or even untruthful. [ 40 ] Because questioning on affidavits generally takes place some time before the underlying application is heard, an affiant does have the opportunity to shore up his or her testimony by providing a further affidavit.

Where the affiant has knowledge or access to knowledge which may be helpful to the other side, there is no policy reason to have a bar against requiring the affiant to obtain the answer for a question that was properly put to the affiant on questioning. [ 41 ] That being said, I am also in agreement with Master Prowse that the court should be slow to direct that an affiant be directed to inform him or herself after the questioning and provide further answers, and that generally witnesses being questioned on an affidavit are treated differently (i.e. with greater restraint as to undertakings) than witnesses being questioned under

Part 5 of the New Rules of Court. [ 42 ] To be clear, therefore, I agree with the Master that there is no general prohibition against asking affiants for undertakings on questioning on their affidavits, but that the propriety of any undertaking sought is governed by the tests set out above. [ 43 ] This does not prevent an affiant or counsel on his or her behalf from agreeing to provide undertakings on a voluntary basis. As noted by the Master, it may be in the affiant’s advantage to provide such information, as the information will be used on the underlying application.

Giving undertakings, and complying with them, may avoid the underlying motion from failing for want of evidence. [ 44 ] I also agree with the Master’s conclusion that the courts should be slower in requiring affiants to inform themselves than is the case with witnesses being questioned in the disclosure process under

Part 5 of the New Rules. [ 45 ] Here, I am satisfied that, subject to privilege issues and relevance issues as to each inquiry requested, it is appropriate to require Mr. Brogden to inform himself as to steps taken on his behalf to identify the individuals who may have been involved in Ms. Rozak’s treatment at the University Hospital. [ 46 ] In relation to this application, Mr. Brogden can only assert that he has been reasonably diligent in identifying the appropriate

defendants by informing himself from his counsel as to what was done by them on his behalf. The information sought relates to an important issue in the application - the commencement date for the limitation period - and requesting the information from counsel is not onerous and would likely be significant in determining the application. [ 47 ] Thus both alternatives in the test in Dow Chemical are satisfied here. VII. Relevance [ 48 ] It should be noted that the Plaintiff does not argue that the naming of Dr. Darren Neilson was a misnomer. The Plaintiff intended to sue someone else, not Dr.

Darren Neilson, so this is not a case of mis-spelling the person’s name. [ 49 ] The doctors are resisting the underlying application on the basis of the Limitations Act . There are two provisions in the Limitations Act which are brought into play: s. 3(1) (

a) dealing with the basic two year limitation period from discovery of the cause of action, and sections 6(1) and 6(4) (1)(

b) dealing with adding defendants to an existing lawsuit after the two year period has run. [ 50 ] S. 3(1)(

a) provides: Subject to

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, [ 51 ] S. 6(1) states: Notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced, either through a new pleading or an amendment to pleadings, the defendant is not entitled to immunity from liability in respect of the added claim if the requirements of subsection (2), (3) or (4) are satisfied. [ 52 ] S. 6(4)(

b) states: (

b) the defendant must have received, within the limitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced in maintaining a defence to it on the merits. [ 53 ] Additionally, s. 6(5)(

b) provides that: the defendant has the burden of proving that the requirement of subsection 3(

b) or 4(b), if in issue, was not satisfied.

VIII. Onus and Arguments [ 54 ] As this is an application to add defendants, to which s. 6(4)(

b) applies, the doctors acknowledge that the onus is on them to demonstrate that their identities were discoverable by Mr. Brogden before the dates identified below, citing Resortport Development Corp. v. Alberta Racing Corp. , 2004 CarswellAlta 1880 (Q.B.), at para. 3 , aff’d 2005 ABCA 49 . [ 55 ] The test for discoverability is set out in De Shazo v.

Nations Energy Co. , 2005 ABCA 241 : A cause of aciton arises for purposes of a limitation period when the material facts on which it (the cause of action) is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. (At para. 26) ... The claimant must know or have been reasonably able to discover that: (

i) the injury occurred; (ii) the injury was attributable to the conduct of the defendant; and (iii) the injury warrants bringing a proceeding. (At para. 28) [ 56 ] In this case, there are different arguments with respect to each of the doctors: Dr. Kevin Neilson [ 57 ] The Plaintiff argues that Dr. Neilson was served within two years from the discovery of an arguable cause of action against him. The University Hospital records only show “Dr. Neilson”; materials relied on by the Plaintiff for the purpose of preparing and issuing the Amended Statement of Claim showed only Dr.

Darren Neilson as an emergency doctor in Edmonton. The first the Plaintiff learned of Dr. Kevin Neilson was a June 20, 2008 email from counsel for the doctors, who advised that “He (Dr. Darren Neilson) tells us that Dr. Kevin Neilson, however, was on shift. Darren believes that Kevin should be the named Defendant.” [ 58 ] If June 20, 2008 is the appropriate date for the discoverability of Dr. Kevin Neilson’s identity and involvement, the application to amend (November 14, 2008) was within the discoverability date. [ 59 ] Alternatively, if Dr.

Kevin Neilson is to be treated as a party to be added after the limitation period has expired, the test is whether he learned of a possible claim against him within the appropriate limitation period, plus the time for service of the Amended Statement of Claim under the Rules of Court. [ 60 ] In the latter circumstance, the Amended Statement of Claim was issued on June 1, 2007. It had to be served (or renewed) before June 1, 2008.

But using discoverability principles, the Plaintiff argues that the earliest commencement time would be November 16, 2005, the date the November 14, 2005 correspondence from the University Hospital enclosing Ms. Rozak’s medical chart was received by Mr. Brogden’s counsel. Thus, the Statement of Claim should have been issued and served on Dr. Kevin Neilson by November 16, 2008. [ 61 ] As such, even if the limitation period has expired, since Dr.

Kevin Neilson had knowledge of the possible action against him on July 2, 2008, the application to add him as a defendant to the existing action is not barred by the Limitations Act .

[ 62 ] Dr. Neilson argues that the limitation period began to run on June 4, 2005, the date of Ms. Rozak’s death. Alternatively, he argues that Mr. Brogden has not established that he was reasonably diligent in obtaining the University Hospital’s chart and in determining that the Dr. Neilson referred to in it was Dr. Kevin Neilson and not Dr. Darren Neilson. He argues that his signature is clearly identifiable in the chart, and he is shown in the readily-available Alberta Health and Wellness Statement of Benefits Paid as having provided services to Ms.

Rozak on June 3, 2005. [ 63 ] The Statement of Benefits Paid was not ordered until October 20, 2008, and was received by Mr. Brogden’s counsel on November 12, 2008. [ 64 ] Dr. Neilson argues that the limitation period expired much before November 16, 2005 and that Mr. Brogden has not proven that he was reasonably diligent in obtaining records and determining the correct defendants to name in the Statement of Claim. [ 65 ] Essentially, his argument is that the limitation period expired on June 3, 2007. For the purposes of s. 6(4) (

b) of the Limitations Act , Dr. Kevin Neilson would have had to have known about the possible claim before June 3, 2008. Mr. Brogden has not proven that he was reasonably diligent in obtaining the necessary information; thus there should be no extension of the June 3, 2007 limitation period. Thus, when Dr. Kevin Neilson learned of the possible claim against him on July 2, 2008, it was too late under s. 6(4)(b). [ 66 ] To succeed in adding Dr. Kevin Neilson, Mr. Brogden will have to establish that it was not unreasonable for him to have taken no steps to identify the doctors involved in Ms.

Rozak’s treatment at the University Hospital before July 2, 2005 and that the limitation period under s. 3(1)(

a) commenced then or later. Dr. Ostolosky [ 67 ] Mr. Brogden argues that the discoverability period for Dr. Ostolosky began to run on November 16, 2005 when the hospital records identifying her and her involvement were received by his counsel. Thus, so long as she had notice of the possible claim against her by November 16, 2008, the claim against her is not barred under the Limitations Act . Since she was served with the Amended Statement of Claim and was advised that Mr. Brogden intended to have her added as a defendant by letter of November 3, 2008, there is no limitations defence for her. [ 68 ] Dr.

Ostolosky responds in similar fashion to Dr. Neilson: Mr. Brogden has not discharged the onus on him of showing reasonable diligence in obtaining the medical records and the relevant date should not be extended beyond the basic limitation period of June 3, 2005. That would have required notice to her by June 3, 2008. Since she did not receive notice until November 3, 2008, the application to add her as a defendant under s. 6(4) (

b) of the Limitations Act must fail. [ 69 ] For Mr. Brogden to succeed in adding Dr. Ostolosky, Mr. Brogden will have to establish that it was not unreasonable for him to have taken no steps to identify the doctors involved in Ms. Rozak’s treatment at the University Hospital before he consulted counsel in August, 2005 (two or so months after Ms. Rozak’s death) and that it was not unreasonable for his counsel to take until November 16, 2005 to obtain the University Hospital chart or otherwise identify the doctors involved in her treatment. Essentially, that the limitation period under s. 3(1)(

a) did not begin to run until November 16, 2005 or later. Dr. Din [ 70 ] Mr. Brogden argues that Dr. Din’s name and involvement could not reasonably be determined from the University Hospital chart, and his name does not appear on the Statement of Benefits Paid. [ 71 ] Mr. Brogden met him on June 3, 2005 when Dr. Din interviewed Ms. Rozak and (as confirmed on his cross-examination on September 15, 2009 that he was aware of the involvement of a white male emergency doctor and an East Indian or Middle Eastern male psychiatrist.

[ 72 ] Mr. Brogden deposed in his affidavit sworn November 13, 2008 in support of his application to add Dr. Ostolosky as a defendant, that he did not then know the identity of the East Indian or Middle Eastern psychiatrist or resident. Attached to his affidavit was a request by his counsel to the University Hospital’s counsel is a letter dated October 20, 2008 requesting the name of the “consultant’s signature”. [ 73 ] He argues that the discoverability period with respect to Dr. Din had not expired by October 20, 2008. While no formal application has been made to add Dr.

Din as a defendant, that is not necessary because under s. 6(4) (b), he can still be added as a defendant. He had notice of the possibility of this action against him in mid-February, 2009 which was well within the limitation period, let alone any added service period. [ 74 ] Dr. Din’s counsel argues that the limitation period against him expired on June 3, 2007. Mr. Brogden has not satisfied the onus on him of showing reasonable diligence in seeking out his identity and involvement. His involvement (but not necessarily his name) was known to Mr. Brogden on June 3, 2005 when they met.

At the latest, discoverability for Dr. Din might run to November 16, 2005 when the hospital charts were provided to Mr. Brogden’s counsel. The chart clearly identifies Dr. Din. Thus, the latest limitation period for Dr. Din would have expired on November 16, 2007. For s. 6(4)(

b) of the Limitations Act to apply, he would have had to have had notice of the possible claim before November 16, 2007. Since he only had such notice in mid-February, 2009, the action is clearly barred against him and the application to add him under s. 6(4)(

b) is doomed to fail. [ 75 ] For Mr. Brogden to succeed in adding Dr. Din, it appears that he will have to establish that it was not unreasonable for his counsel to have not identified Dr. Din from the University Hospital records provided to them on November 16, 2005, and further that it was not unreasonable for them to take no further steps to identify doctors involved in Ms. Rozak’s treatment at the University Hospital until after mid-February, 2006 (despite Mr. Brogden’s knowledge that an East Indian or Middle Eastern psychiatrist was involved). Essentially, that the limitation period under s. 3(1)(

a) did not begin to run until mid-February, 2006 or later. [ 76 ] Mr. Brogden also has arguments that could lead to similar result as are argued with respect to Dr. Kevin Neilson and Dr. Ostolsky: that sufficient information was not learned about Dr. Din’s involvement until late 2008 or even 2009 such that the period under s. 6(4)(

b) has not yet run. For the purpose of this application, those arguments do not need to be dealt with. [ 77 ] Thus, the issues for Dr. Kevin Neilson are: 1. Whether the limitation period based on discoverability expired July 2, 2007 or later. 2. Has Dr. Neilson satisfied the onus on him that Mr. Brogden should, with reasonable diligence, have discovered that he had a possible cause of action against Dr. Kevin Neilson before July 2, 2005 (a month after Ms. Rozak’s death and before he sought legal counsel in August, 2005)? [ 78 ] For Dr. Ostolovsky: 1.

Whether the limitation period based on discoverability expired November 12, 2007 or later. 2. Has Dr. Ostolovsy satisfied the onus on her that Mr. Brogden should, with reasonable diligence, have discovered that he had a possible cause of action against Dr. Ostolovsky before November 12, 2005 (before Mr. Brogden’s counsel received the University Hospital chart identifying Dr. Ostolovsky)? [ 79 ] For Dr. Din: 1. Whether the limitation period based on discoverability expired before mid-February, 2008. 2. Has Dr. Din satisfied the onus on him that Mr.

Brogden should, with reasonable diligence, have discovered that he had a possible cause of action against Dr. Din before mid-February, 2006 (three months after the University Hospital chart with his signature and printed name was received by Mr. Brogden’s counsel)?

[ 80 ] It is reasonable to assume that Mr. Brogden left the identification of possible defendants to his counsel after August, 2005, so issues as to his diligence or reasonableness in trying to identify the correct defendants are really issues as to the diligence or reasonableness of his counsel. Thus the application and the evidence is destined to bump up against solicitor - client privilege and solicitor’s work product privilege. IX. Master’s Decision [ 81 ] The essence of the Master’s ruling is found at pages 2 and 3 of his decision: Further comment from the BC Appellate Court in Hodgkinson v.

Simms , 1988 Carswell BC 437 : If lawyers were entitled to dip into each other’s briefs by means of the discovery process, the straightforward preparation of cases for trial would develop into a most unsatisfactory travesty of our present system. In my view, there might be an appropriate case to allow for that type of questioning, but it would have to be a rather severe case, and it would have to be a situation where justice cried out for that type of inquiry to be answered. In this case, it is clear from the hospital record that Kevin Neilson should have been named as a defendant as should have Dr.

Ostolosky and as should the resident. So in this case there is no obligation for Mr. Brogden in the context of a cross-examination on affidavit to answer undertakings, especially where, as her, it would require Mr. Brogden to inform himself of making inquiries of his counsel in order to provide the answer. In my vies, the Court should lean towards protecting the file of counsel for the plaintiff, and, as I say, in an appropriate case, it might be that the Court would rule otherwise. Dealing now with the undertakings in question, I do not think it is necessary to go through them one by one.

I have already indicated which way I am headed on this, so that undertaking number 6, 8, 9, and 10 do to have to be answered. Undertaking 13 is to make inquiries of Brogden’s counsel as to what medical directories are available in his lawyer’s office. That does not go into the lawyer’s brief. That is a straightforward matter, and I direct that that be provided. Undertaking number 16 is to make inquiries and determine when it was that r. Brogden first advised counsel that he had a recollection of Ms. Rozak being seen by a male intern, a resident of Middle Eastern Descent.

That is relevant material, and it shall be provided. Eighteen is, my view, going into plaintiff’s counsel’s file or worse yet, asking him to ask his lawyer to provide an answer to that question, and that will not be provided. Twenty-one, again it is asking Mr. Brogden to seek information from his counsel, and that will not be provided. I should say a number of these matters for them not to be provided does not mean that the information sought is not available in one form or another to be provided to the Court should this matter proceed to trial or to

summary judgment. Twenty-two is make inquiries of Brogden’s counsel to determine if there was something preventing him from determining or recognizing that there was a resident involved. I mean, again, that is asking the plaintiff to get information from the counsel. It is evident from the possible record that there was a resident involved, so the evidence is already there. [ 82 ] He determined that undertaking requests 6, 8, 9, 10 and 22 need not be answered because they involved solicitor’s work product privilege, and he was not satisfied that such privilege had been waived.

[ 83 ] With respect to undertaking requests 13 and 16, he directed that they be answered, on the basis of relevance. X. Specific Undertakings Requests [ 84 ] The onus of showing that Mr. Brogden failed to exercise reasonable diligence in discovering the identities of the doctors involved lies on the doctors. It is also clear that knowledge as to what Mr.

Brodgen knew and when he knew it would not be known to the doctors, and the only way of finding out such information would be to obtain it from him, or from persons acting on his behalf. [ 85 ] The issues of knowledge, diligence and timing are clearly relevant and material to the underlying application in a general way, and specifically with respect to those issues to those specific dates discussed above.

Undertaking 6 [ 86 ] Request 6 seeks any more information received or obtained to determine that Carl Blashko and Darren Neilson should be added as defendants prior to filing the Amedned Statement of Claim. [ 87 ] Firstly, there is no issue regarding Dr. Blashko on the underlying application, so information regarding him is not relevant and need not be provided. As regards Dr. Darren Neilson, the relevant date for the purpose of the underlying application is July 2, 2005. [ 88 ] It may be that the plaintiff was not diligent in seeking counsel.

It may be that counsel was not diligent in identifying the doctors involved in Ms. Rozak’s care at the University Hospital. But a statement of claim was issued within the time for the earliest possible limitation period to expire. Dr. Darren Neilson was therefore sued in time, although it is clear that there was no cause of action against him. [ 89 ] Therefore, the underlying application clearly involves s. 6(4) (

b) of the Limitations Act , and the only relevant date for Dr. Kevin Neilson is July 2, 2005. Any lack of diligence after that date does not affect the outcome of the underlying application. [ 90 ] The undertaking which might be required to be answered would be “what information was received or determined that Darren Neilson should be added as a defendant prior to July 2, 2005". Because counsel was not retained until August, 2005, the answer to that undertaking would be solely in Mr. Brogden’s knowledge, and he should be required to answer it.

Undertaking 8 [ 91 ] Request 8 seeks information as to what steps were taken on Mr. Brogden’s behalf to determine why Darren Neilson was named as a defendant. [ 92 ] As the answer to that question relates to a period long after July 2, 2005, I do not see any relevance to it and it need not be answered. Undertaking 9 [ 93 ] Request 9 seeks information as to what steps were taken on Mr. Brogden’s behalf between June 4, 2005 and June 1 2008 to determine whether any other physician should be named as defendants in the lawsuit, particularly Dr. Ostolosky and Dr. Din.

[94] The relevant date for Dr. Ostolosky is November 12, 2005. The relevant date for Dr. Din is mid-February, 2006. [95] If steps were taken on Mr. Brogden’s behalf other than by or for his lawyers, that information should be provided as regardsDr. Ostolsky to November 12, 2005 and as to Dr. Din to February 15, 2006. [96] With respect to steps taken on Mr.

Brogden’s behalf by his counsel, solicitor-client privilege and solicitor’s work productprivilege are raised. [97] At the outset, I need not weigh into whether solicitor’s work product privilege is or is not a subset of litigation privilege or astand-alone privilege of lesser. Whether as a subset of litigation privilege or standing on its own, work product privilege has lesserstanding than solicitor-client privilege. Blank v. Canada, 2006 SCC 39, R. v. Card, 2002 ABQB 537, Hudson Bay Mining & SmeltingCo. v. Cummings, 2006 MBCA 98, Moseley v. Spray Lakes Sawmills

(1980) Ltd., (1996), 1996 ABCA 141 , 39 Alta. L.R. (3d)141 (Q.B.), are to that effect. [98] Privilege can be waived by giving evidence of a privileged communication, or where a party, by his testimony or pleadingvoluntarily raises a defence or asserts a claim which makes information provided by his solicitor relevant. Selective waiver is notpermitted: Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co., ; True Blue Cattle Co. v. Toronto-Dominion Bank, 2004ABQB 145, Petro Can Oil & Gas Corp. v. Resource Service Group Ltd., [1988] A.J. No 336 (Q.B.), aff’d (1988), 32 C.P.C. (2d) xlvi(Alta.

C.A.); Alberta Wheat Pool v. Estrin, [1986] A.J. No. 1165 (Q.B.) , aff’d (1987) 17 C.P.C. (2d) (xxxiv) (Alta.

C.A.); Marion v.Wawanesa Mutual Insurance Company, 2004 ABCA 213. [99] Positions cannot be taken that are inconsistent with maintaining privilege; privilege on a particular issue or point cannot bewaived selectively or unfairly. [100] I hasten to add that preservation and protection of solicitor client privilege (and to a lesser extent litigation privilege andsolicitor’s work product privilege) is important, and privilege should not be interfered with other than in the few exceptionalcircumstances recognized by the courts: Pritchard v. Ontario Human Rights Commission, 2004 SCC 31, Descoteaux c.

Mierzwinski, (SCC), [1982] 1 S.C.R. 860, Smith v. Jones, (SCC), [1999] 1 S.C.R. 455, and R. v. Fosty, (SCC), [1991] 3 S.C.R. 263. [101] Where the issue of diligence has been legitimately raised (as it has here because of the Plaintiff’s application to add the doctorsas defendants after the standard without-discoverability period of two years from the injury), the Plaintiff’s diligence as well as hissolicitor’s diligence becomes relevant.

As the only way the doctors have of testing such diligence is through cross-examination on Mr.Brogden’s affidavit and seeking undertakings with respect to his counsel’s actions (unless the doctors wanted to risk examining thePlaintiff’s counsel under Rule 6.8 as their witness rather than through cross-examination), solicitor client privilege may well have toyield on issues relating to knowledge of doctors, and the diligence of the solicitors in informing that knowledge.

It would be unfair toallow the plaintiff to essentially say “I didn’t do anything, I left it all to my lawyers” and then refuse to say what the lawyers have toldhim they did, or even ask them about it. [102] That is not to say that the resulting waiver or loss of privilege extends to anything beyond diligence in discovering the identityof the doctors involved. Mr. Brogden’s affidavits do not go beyond diligence issues, and anything beyond that would be irrelevant to theunderlying application let alone being an unwarranted incursion into privilege.

[ 103 ] In the context of the undertaking sought, as modified by me above, I do not see that it is improper to ask what steps the solicitors took from the time they were retained until the relevant date specified above. Mr. Brogden has brought diligence into issue by applying to add the doctors as defendants, and discoverability is necessary to extend the limitation period for suing each of the doctors to or beyond the relevant dates. Undertaking 10 [ 104 ] Request 10 seeks information as to whether there was anything preventing Mr.

Brogden or anyone on his behalf from contacting the University Hospital to make inquiries as to the identities of the doctors who were involved in Ms. Rozak’s care. [ 105 ] I see this as a question of diligence - was there some reason why Mr.Brogden’s counsel did not contact the University Hospital or its solicitors to determine specifically which doctors were involved, particularly after receipt on November 16, 2005 of the University Hospital chart in which Dr. Kevin Neilson’s signature, Dr. Ostolosky’s name and Dr. Din’s signature and printed name are found (legibility issues aside). [ 106 ] As regards Dr.

Kevin Neilson, the question is irrelevant as the relevant date for him had passed before counsel was retained. [ 107 ] As regards Dr. Ostolosky, the relevant date is November 12, 2005. In my view, the undertaking should be answered with respect to her to November 12, 2005. My view on privilege is the same as with requested undertaking 9. [ 108 ] As regards Dr. Din, the relevant date is February 16, 2006, and the undertaking should be answered with respect to him to February 16, 2006. [ 109 ] Any times after February 16, 2006 are simply not relevant to the application to amend.

Undertaking 13 [ 110 ] In request 13, the doctors seek information as to what materials were available to Mr. Brogden’s counsel between August, 2005 and June 1, 2008 (when the Amended Statement of Claim was issued). Mr. Brogden objects to this as it is part of his solicitor’s work product. [ 111 ] Firstly, as with the other undertaking requests, times after February 16, 2006 are not relevant to the application to amend. So the time frame is in any event narrowed to August, 2005 to February 16, 2006. Diligence is in issue.

It seems to me that it is relevant to know what resources the plaintiff (or his counsel) actually had readily available to them, or obtained for the purposes of determining the appropriate parties, during this relevant time frame. Certainly the doctors are free to argue what sources of information might have been available to the plaintiff or his counsel, but it is clearly relevant to know what information they actually had . [ 112 ] Mr. Brogden’s counsel has already advised that they had the 2005 Canadian Medical Directory in their offices and that they consulted it regarding Dr. Darren Neilson.

There are issues relating to his identity, as well as whether Dr. Din’s identity is ascertainable from the University Hospital Chart. I see no valid objection to Mr. Brogden being asked to enquire of his solicitors what resources they had in their offices to ascertain doctors’ identities during this period. [ 113 ] As to privilege, if any materials were obtained for the purpose of this litigation in this period, privilege has been waived by the plaintiff putting his due diligence in issue.

If materials (such as directories) are simply part of counsel’s library, I do not see that it could be claimed that they were obtained for the dominant purpose of this litigation. In that regard, I do not see the request as being any more

objectionable than asking if counsel had the Western Weekly Reports or the Supreme Court Reports in their offices. They may be there for litigation purposes generally, but no one file specifically. It would be difficult to see how a “dominant purpose” test for privilege could be met. [ 114 ] The requested undertaking should be answered, but limited to the period ending February 16, 2006. Undertaking 16 [ 115 ] In request 16, the doctors want to know when Mr. Brogden told his counsel that Ms. Rozak had been treated by a male resident or intern of East Indian or Middle Eastern descent.

This was objected to on the basis of the answer being a protected solicitor-client communication. [ 116 ] Doubtless the question goes to the a well-protected area: communications between solicitor and client for the purpose of giving and receiving legal advice. However, in my view the privilege relating to the answer has been waived by the issue of due diligence in determining Dr. Din’s involvement and identity being brought into issue by Mr. Brogden. If the answer relates to a period after February 16, 2006, the specific date or circumstances need not be disclosed as being irrelevant.

But if such a disclosure was made before February 16, 2006, the doctors are entitled to know that. [ 117 ] 22 The doctors want to know why Dr. Din’s involvement and identity were not recognized by counsel following receipt of the University Hospital records on November 16, 2005. Ordinarily, what was done with the records, or how they were interpreted, would be the subject of work product privilege. In some cases, obtaining records would be included in that privilege. That would not apply here, however, as the records were obtained from one of the parties to the lawsuit. [ 118 ] Again, because Mr.

Brogden’s diligence is in issue, any privilege relating to the records as to that issue has been waived. The doctors are entitled to know why Dr. Din’s identity and involvement were not recognized after November 16, 2005, and whether there were any impediments to following up on the records until at least February 16, 2006. XI. Conclusion [ 119 ] In the end, I find that the learned Master erred in law in declining to order that Mr. Brogden inform himself from counsel and advise as to undertaking requests 6, 9, 10 and 22.

The answers to those requests fall within the exceptions to privilege - whether solicitor and client or litigation privilege or work product privilege. Number 8 need not be answered, but on the basis of relevance rather than privilege. [ 120 ] I agree with the Master’s conclusion on Number 13. [ 121 ] While I agree with his decision on Number 16, he did not deal with privilege. The question was clearly relevant, but the response strikes directly at solicitor-client communications and would clearly be privileged but for waiver. As noted above, Mr.

Brogden waived privilege over that communication by putting his diligence into issue. [ 122 ] I also agree with the Master’s comment that “the Court should lean towards protecting the file of counsel”. Privilege is an essential part of our legal system, and must be protected, subject to waiver and the very limited exceptions described in the case law. XII. Costs

[ 123 ] Despite the fact that I have directed that all but one of the requested undertakings be answered, I have in all cases limited the scope of the inquiries. The doctors sought information for periods much later than is relevant on the application to amend. I thus view the result as having mixed success for both sides: the plaintiff has to provide more information than he was prepared to, and the doctors will receive less information than they sought. [ 124 ] As a result, costs of this application, and the application before the Master, should be in the cause. Heard on the 23 rd day of February, 2011.

Dated at the City of Edmonton, Alberta this 7 th day of April, 2011. R.A. Graesser J.C.Q.B.A. Appearances: Philip Kirman Weir Bowen LLP for the Plaintiff David Hawreluk and Alison Archer Bennett Jones LLP for the Applicants Kevin Neilson, Lara Ostolosky and Omar Din _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice R.A. Graesser

_______________________________________________________ The citation has been corrected from “Brogden v. Demas” to “Rozak (Estate)” on the cover page.