Dasilva v. McLean, 2011 ABQB 618

Court of Queen ’ s Bench of Alberta Citation: Dasilva v. McLean, 2011 ABQB 618 Date: 20111006 Docket: 0803 16385 Registry: Edmonton Between: Katrina Dasilva Plaintiff - and - Deirdre McLean Defendant _______________________________________________________ Reasons for Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is a Defendant ’ s application for

summary dismissal. [ 2 ] The Defendant, Dr. McLean, is a physician. She was hired by the WCB to do an assessment of the Plaintiff ’ s condition in order to determine her eligibility for benefits. The Plaintiff did not agree with the doctor ’ s assessment and she has sued Dr. McLean alleging defamation and negligence. The Plaintiff is now self-represented. Defamation

[ 3 ] Section 34(4) of the Workers Compensation Act , RSA 2000, c. W-15 is as follows:

(4) A report made or submitted to the Board under this Act by a physician or a hospital or other treating agency is for the use and purpose of the Board only, and is a privileged communication of the person making or submitting it and, unless it is proved that it was made maliciously, is not admissible in evidence or subject to production in any court in an action or proceeding against that person. [ 4 ] Although there does not appear to be any judicial consideration of this section, “ privilege ” is used in s. 34(4) of the Act in the sense it is used in the law of defamation.

It tells us that the maker of the report has a right to be protected or excused from liability for defamation. [ 5 ] The intent of this

section is plainly to allow doctors to give their candid and open opinion without fear of being sued if their opinion is not flattering or complimentary to the person being examined. The doctor ’ s opinion is protected in these circumstances so that the board can get at the truth. In these circumstances the reputation of the individual is subordinate. The greater good justifies the doctor writing or saying things in her report that might be defamatory in another context. [ 6 ] The protection is not absolute.

Malice can take the words outside the scope of protection. [ 7 ] There are a large number of cases dealing with the proof of malice. If we follow The Law of Defamation in Canada, Raymond E. Brown, Carswell (2 nd ed) pp. 1616-1681, malice can arise in a number of circumstances: improper motives, bad faith negating honesty of beliefs, and falsity that goes beyond negligence or carelessness. [ 8 ] The burden remains on the Plaintiff to prove malice in the lawsuit. The Plaintiff alleges defamation in her Statement of Claim. The Defendant raises privilege or immunity as a defence.

The burden then falls to the Plaintiff to show that the circumstances take the report outside the scope of protection afforded by section 34(4) of the Act . It is not the reverse. The Defendant is not obliged to prove good faith (etc.). [ 9 ] In Canada (Attorney General) v. Lameman , 2008 SCC 14 , (at para. 10 ) the court commented on the purpose of

summary judgment: The

summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims impose a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is central to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage.

Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. [ 10 ] There is an additional consideration now that we have our new Rules. It is encumbent upon parties whose claims disclose real issues to make every effort to resolve matters short of trial. This is what Rule 1.2 tells us. A dispute resolution process is now mandatory. (Rule 4.16 et seq.) Trying even meritorious claims imposes a heavy price on the parties as well. The winner of a lawsuit is likely to be out-of-pocket for legal fees.

A Plaintiff with a weak claim is especially vulnerable to an award of costs at the end of the day. [ 11 ] The Law Reports give us a road map for how the

summary dismissal Rule should be interpreted. The details are not in the Rule itself, which is very simple. [ 12 ] First, we can take advantage of the older decisions in this area, as the principles that applied to old Rule 159 now apply to Rule 7.3. Manufactures Life Insurance Company v. Executive Centre at Manulife Place , 2011 ABQB 189 , para. 11 per Viet, J.; Kwan v. Superfly Inc., 2011 ABQB 343 ; 1238119 Alta. Ltd. v. FarmAir Property , 2011 ABQB 527 ; Janvier v. 834474 Alberta Ltd. , 2010 ABQB 800 .

[ 13 ] The test is well established: Is it ‘ plain and obvious ’ or ‘ beyond doubt ’ that there is (in this case) no merit to the claim or part of it: Rule 7.3(1)(b). [ 14 ] The legal burden is on the Applicant throughout. The Respondent is not obliged to furnish evidence. However, if an Applicant discharges the evidentiary burden imposed upon it on a balance of probabilities, the evidentiary burden then falls to the Respondent to show that there is arguable merit to the case. Murphy Oil Company Ltd. v. Predator Corp.

Ltd. , 2006 ABCA 69 . [ 15 ] The Respondent runs a risk if they do not adduce any evidence in response to the application. Parties are expected to put their best foot forward. The court cannot base its decision on what evidence might be generated later in the lawsuit, should it be allowed to continue. Canada (Attorney Gen.) v. Lameman , and FarmAir (above). [ 16 ] Disputed and contentious matters of fact, or issues of credibility, are not suitable for

summary judgment and they are also beyond the Masters ’ jurisdiction unless the parties agree. Court of Queen ’ s Bench Act, RSA, 2000 c. C-31, s. 9(3)(b). ( Note also Janvier (above) and ATB v. Gammell , 2011 ABQB 351 per Kent, J., BA Capital Inc. v. Stream Oil and Gas Ltd. , 2011 ABQB 91 per Mason M.). The trial judge is to assess the quality and weight of the evidence. Gayton v. Lacasse , 2010 ABCA 123 per Conrad and O ’ Brien JJA at para. 12. [ 17 ]

Summary judgment is particularly appropriate if there is no factual dispute, as then there would be no purpose to a trial. Manulife (above) . If there are only questions of law,

summary disposition is probably the most efficient use of judicial resources. However, the overriding consideration is whether the legal issue can ‘ fairly be decided on the record before the court ’ . Gayton v. Lacasse , 2010 ABCA 123 , para. 11 and Tottrup v. Clearwater (Municpal District No. 99), 2006 ABCA 380 , at para. 11 . [ 18 ] In this case, the Applicant has successfully met the first portion of the burden falling to her by demonstrating that the facts of this case are caught by s. 34(4) of the Workers ’ Compensation Act .

The burden then falls to the Plaintiff/Respondent to demonstrate malice or at least show that the allegations of malice have arguable merit. This burden is not discharged by a Plaintiff merely saying in her pleadings that the Defendant acted maliciously. There must be some evidence of malice, and as noted above, there are a variety of options available for the proof of this crucial element. [ 19 ] The Plaintiff/Respondent has not discharged this evidentiary burden. The fact, the only evidence on this point suggests an absence of malice. The Plaintiff ’ s suspicions are not enough.

Consequently, those portions of the claim dealing with defamation are dismissed. The fact that there may be opinions that differ from the Defendant ’ s, or which result in a different assessment, does not establish that the circumstances take us outside of the protection offered to the Defendant under Section 34(4) of the Act. Negligence [ 20 ] The Plaintiff also alleges that Dr. McLean was negligent. Her main point appears to be that the Appeals Commission overturned the first instance decision and awarded benefits, though the ultimate disposition of the case is not clear from the evidence before me.

The Appeals Commission required another examination. The Appeals Commission also noted their concerns with Dr. McLean ’ s report. [ 21 ] It is open to a Defendant in a negligence action to defeat the claim by showing no duty, no breach, or no damages.

i) Duty [ 22 ] Section 34(4) of the Workers Compensation Act does not protect physicians such as Dr. McLean from claims in negligence. [ 23 ] After a thoughtful review of the law, Master Hanebury concluded in Milne v. Alberta (Workers ’ Compensation Board),

2008 ABQB 710 : [54] Based on the decision in Lowe and Worthman , I am not convinced that the law is clear that the doctors are protected from such claims. The earlier case law cited by the doctors ’ counsel involved factual situations considerably different than this one where there is a statutorily mandated scheme that proscribes the options and remedies open to an injured employee and involves his treatment and rehabilitation. Do the professionals utilized or employed pursuant to that legislative scheme owe a duty of care to the injured worker? There is no case law precisely on point and in my view, this question cannot be determined on a

summary judgment application. It is a decision that must be made after a careful analysis of the Anns/Kamloops test and, if necessary, a consideration of important public policy factors. Therefore, this aspect of the claim of Mr. Milne cannot be summarily dismissed. [ 24 ] The existence of a duty in a negligence action is a question of law requiring the application of decided cases and statutes to a set of facts. Since Anns/Kamloops , however, the emphasis appears to be on negativing a prima facie duty on policy considerations.

The burden of showing no duty essentially falls to a Defendant in a negligence action who must show a policy reason for negativing or limiting a prima facie duty. However, as Master Hanebury points out, the existence of a duty in these circumstances is not settled. It is not something that is amenable to

summary disposition. ii) Breach [ 25 ] A Defendant could succeed in having a negligence action dismissed by showing that she had met the applicable standard of care, or that there were no damages. The standard of conduct regarded to establish a breach is a question of fact for which expert evidence is admissible. Damages are required to complete the tort. [ 26 ] Even though it is doubtful that the types of things raised by the Plaintiff would constitute a breach, or fall beneath the requisite standard of conduct, there is no evidence of the applicable standard of care.

So that is strike two. iii) Damages [ 27 ] In this case, it appears that qualified benefits were ultimately provided to the Plaintiff after Appellate Review. However, the disposition of the case is not entirely clear and we do not know the length of delay. Nevertheless, it is difficult to see that there could be any, or any significant damages caused by Dr. McLean. [ 28 ] The Plaintiff slipped and fell in her employer ’ s parking lot.

She was found by the medical panel to have suffered chronic myofascial pain syndrome as a result. [ 29 ] The medical panel found: Based upon the Worker ’ s compensable condition and the objective physical findings present, the Panel Physicians are unable to identify any specific work restrictions (based on risk of harm) or any limitations (based on capacity). It is acknowledged that myofascial pain sufferers may have a reduced tolerance of work activities based upon activity-aggravated symptom increases. However: It is the Panel ’ s understanding that Ms.

DaSilva is currently working 30 hours per week (including breaks) in a sedentary position. It is our opinion that this is maximal for her; we would have concerns that attempts at increasing her work hours would provoke worsening symptoms and deterioration in her condition. This is expected to be permanent.

[ 30 ] Apparently, the Plaintiff is receiving partial benefits but the nature and extent of the benefits, and whether they were retroactive, is not clear. [ 31 ] The harm alleged in the Statement of Claim is the stress of the process including the discomfort caused by a second examination and, ultimately, the delay in receiving benefits. Special damages are claimed but not detailed. [ 32 ] The stress of litigation is not normally a compensible head of damages. The claims procedure may have been stressful. Litigation is stressful for both sides.

The winner of a lawsuit doesn ’ t get any special compensation for the stress of litigation. There would likely have to be extraordinary circumstances before there could be any recovery. [ 33 ] Furthermore, if the ultimate award was retroactive, it is difficult to see that there would be any claim related to the delay. It is possible to envision some out-of-pocket expenses but it is unlikely that these would be substantial.

So even though it is unlikely that the Plaintiff will be able to prove any (or any significant) damages at trial, the burden remains on the Applicant in this application to show that the tort is not complete. This burden has not been discharged. So that is strike three. [ 34 ] While the burden of showing that one of: duty, breach ,or damages is missing, falls to the Defendant/Applicant in a

summary judgment application, the burden of succeeding on all these points remains on the Plaintiff at trial. Proof maybe complex and technical. Damages may be small and any victory, Pyrrhic. The Plaintiff is self-represented, and she may well be oblivious to the risks that a formal offer might bring (for example) which could well have the effect of her having to pay the Defendant despite winning the trial. In other words, the risk may outweigh the reward. [ 35 ] There may not be enough at this stage to deal with the lawsuit on a

summary basis but taking this matter to trial may be a risky, extravagant waste. The Plaintiff asked to have a dispute resolution process implemented. Perhaps this now mandatory step will bring this claim to resolution. Conclusion [ 36 ] The application for

summary dismissal with respect to the portion of the claim that deals with defamation is allowed. The portion of the

summary dismissal application dealing with negligence is dismissed. Those allegations can proceed. [ 37 ] The Plaintiff ’ s informal cross-application to change ‘ deny ’ to ‘ delay ’ in paragraph 10 of the Amended Statement of Claim is allowed. [ 38 ] Costs of the application will be in the cause. I am grateful to Defendant/Applicant ’ s counsel, counsel who brought the Milne case to my attention. Heard on the 25 th day of July, 2011. Dated at the City of Edmonton, Alberta this 6 th day of October, 2011.

W. S. Schlosser M.C.C.Q.B.A. Appearances: Katrina Dasilva self represented Dan Morrow Bennett Jones LLP for the Defendant