Kydd v. Abolarin, 2011 ABQB 690

Court of Queen ’ s Bench of Alberta Citation: Kydd v. Abolarin, 2011 ABQB 690 Date: 20111110 Docket: 0403 02957 Registry: Edmonton Between: Kenneth Kydd and Her Majesty the Queen In Right of Alberta Plaintiffs (Respondents) - and - Dr. Mofoluwaso A. Abolarin, Dr. Moses Ovakporaye, Jane Doe and Mistahia Health Region operating a hospital known as Queen Elizabeth II Hospital Defendants (Appellants) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I.

Introduction [ 1 ] The Plaintiff Kenneth Kydd issued a Statement of Claim against the Defendants on February 17, 2004 alleging that the Defendant doctors were negligent in their diagnoses and treatments of the Plaintiff between February 17, 2002 and April, 2002. On May 16, 2011, the Plaintiff applied to the Master for an Order granting leave to the Plaintiff to file an Amended Statement of Claim adding the Estate of Dr. Philip T. Sunohara as a Defendant. [ 2 ] Dr. Sunohara treated the Plaintiff in January and February 2002. The Plaintiff says that he only became aware of the

negligence of Dr. Sunohara after receiving an expert opinion in June 2009. Dr. Sunohara passed away on October 21, 2005. [ 3 ] The Master allowed the application and granted an Order allowing the Plaintiffs to add the Estate of Dr. Sunohara as a Defendant, appoint an administrator ad litem , and amend the Statement of Claim as necessary. [ 4 ] The Estate appeals the decision of the Master. II. Background Facts [ 5 ] In 2001, the Plaintiff, Kenneth Kydd, was experiencing work related pain in his shoulder and was seeking treatment from his family physician, Dr. Moses Ovakporaye. On November 23, 2001, Dr.

Ovakporaye referred the Plaintiff to Dr. Philip Sunohara, an orthopaedic surgeon. The Plaintiff saw Dr. Sunohara on January 9, 2002, January 23, 2002 and February 4, 2002. [ 6 ] On February 17, 2002, the Plaintiff suffered a fall on a hay ride and was transported to the emergency department of the Queen Elizabeth II Hospital with complaints of mid-back pain radiating into his neck and numbness of all extremities. He was seen by the Defendant Dr. Mofoluwaso Abolarin. [ 7 ] On March 4, 2002, the Plaintiff saw Dr. Ovakporaye with respect to the same complaints.

He was sent for additional testing and it was determined that he was suffering from a disc herniation, fractures and an impingement of his spinal cord in his cervical spine. In April 2002, the Plaintiff was referred for further treatment and underwent surgery. [ 8 ] In August 2002, Mr. Kydd retained legal counsel in relation to a possible claim of medical malpractice. A Statement of Claim naming Dr. Abolarin and Dr. Ovakporaye as Defendants was issued on February 17, 2004.

It alleged a failure by the Defendant doctors to properly diagnose and treat the Plaintiff ’ s injuries within “ an appropriate time ” resulting in further and extensive injuries and losses. [ 9 ] On or about January 6, 2005, counsel for the Plaintiff requested a copy of Dr. Sunohara ’ s chart for Mr. Kydd which was received on January 24, 2005. The chart included an entry for February 27, 2002, ten days following the accident. The Plaintiff had no recollection of having seen Dr. Sunohara on that occasion. [ 10 ] Dr.

Sunohara passed away on October 21, 2005. [ 11 ] In March 2009, the Plaintiff retained a neurosurgeon to provide an expert medical opinion as to the cause of his injuries. The materials provided to the expert included Dr. Sunohara ’ s chart. [ 12 ] In June 2009, the expert ’ s opinion (the “ new expert report ” ) was provided to counsel for the Plaintiff. It has not been disclosed to the Defendants nor to the Estate of Dr. Sunohara and is not in evidence before the Court. Mr.

Kydd deposes in his supporting affidavit that the new expert report contains an opinion that his disc herniation likely pre-existed the fall that he suffered on February 17, 2002 and that Dr. Sunohara had failed to meet the standard of care expected of an orthopaedic surgeon by not recognizing Mr. Kydd ’ s disc herniation when he treated him in January and early February 2002. [ 13 ] Mr. Kydd further deposes in his affidavit that prior to receiving the new expert report, he had never contemplated or considered that Dr.

Sunohara might have been negligent or failed to provide him with appropriate care. [ 14 ] On March 25, 2010, the Plaintiff filed a Notice of Motion seeking to add the Estate of Dr. Sunohara as a Defendant in the

action by administrator ad litem . The proposed amendment includes allegations that Dr. Sunohara failed to do proper testing of the Plaintiff ’ s injuries and failed to properly diagnose them. The application was heard by the Master on May 16, 2011 and the amendment was allowed. The formal Order was filed on July 21, 2011. [ 15 ] The Estate of Dr. Sunohara appeals the Master ’ s decision. III. Master ’ s Decision [ 16 ] The Master delivered oral reasons following submissions on May 16, 2011.

His reasons include the following: First off, let me deal with section 6(4) of the Limitations Act , and the prejudice, because I think that ’ s the easiest issue for me to deal with. In my mind if we got to section 6(4), I think the death of Dr. Sunohara, his inability to testify, faced with only the charts, possibly with some missing material, that that would be sufficient to warrant dismissal. So, in my view, the prejudice exists if we get to that point. The more difficult issue really is the whole issue of discoverability in the due diligence, and can I make a determination of that virtually on a

summary basis, though I believe counsel has agreed that my application should be on the basis of a balance. ... Under

section 3 of the Limitations Act , can it be said that the plaintiff knew or ought to have known that he had been injured by Dr. Sunohara for his alleged failure to diagnose the physical injury earlier, that ’ s what I think I have to decide on that aspect of it. There ’ s also, was the existence of the visitation to Dr. Sunohara then, if we get into the due diligence and should he have known, is that enough to alert him or his legal counsel to investigate that possibility.

In that regard, I note that - at least there was a representation today and I presume there ’ s evidence, that the treating specialists and physicians over the last number of years didn ’ t identify this as a possibility. That being the case, or in any case, should there have been the securing of an expert opinion on causation by the plaintiff at an earlier time, and that perhaps may be the ... most live issue that we have to deal with.

Should counsel even without that evidence have obtained that expert opinion on causation earlier. [ 17 ] The Master then concluded with the following: Under the circumstances, I ’ m not satisfied that I have all of the evidence that will be necessary to make those determinations. On balance, I ’ m of the view that these are best left to the trial judge with the benefit of the full evidence, or ... the complete factual matrix in order to make these determinations. I wish to emphasize that I restrict any amendments though to the alleged failure to identify the extent of the injury before the fall from the hay ride.

So, that is before the second injury. ...accordingly then, I will allow the amendments in that regard. ... IV. Issue [ 18 ] The issue on this appeal is whether the Plaintiff ’ s application to amend the Statement of Claim should have been denied on the basis that the limitation period had expired and that such an amendment would be unduly prejudicial to the Estate of Dr. Sunohara. [ 19 ] In Dow Chemical Canada Inc v Nova Chemicals Corporation , 2010 ABQB 524 , Wittmann C.J. summarized the options for a Court when an amendment is sought and there is a limitations issue:

1. Determine the limitation period has not expired and allow the amendment. 2. Rule the limitation period has expired and therefore consider s 6 of the Limitations Act which provides for when an amendment can be made beyond the limitation period. 3. Find that because of uncertainty in the evidence, the amendments should be allowed subject to the determination of the limitation issue at trial... ( Dow Chemical at para 64). [ 20 ] I will address the issues as follows: i.

On the evidence now before the Court, can it be concluded that the limitation period has expired under s 3(1) of the Limitations Act , or is it necessary for this issue to be determined at trial? ii. If the limitation period has expired, would the Estate of Dr. Sunohara be prejudiced if the amendments were allowed? V. Standard of Review [ 21 ] Rule 6.14 of the Alberta Rules of Court provides that an appeal from a Master ’ s decision is an appeal on the record. The standard of review on a decision from the Master on a question of law is correctness.

The standard of review for facts or factual inferences determined by the Master within the Master ’ s jurisdiction to make such findings, is reasonableness. The finding must amount to a palpable and overriding error and that error must be plainly identified and shown to have affected the result. On a question of mixed fact and law, if the principle of law cannot be extricated from the question, then the standard of review is again one of reasonableness only to be interfered with if a palpable and overriding error can be shown.

If the principle of law can be extricated from the question, then the standard of review on the principle of law is correctness ( Janvier v 834474 Alberta Ltd. , 2010 ABQB 800 at para 18 ). [ 22 ] In my view, the application of the facts in this case to the law as set out in the Limitations Act , RSA 2000, c L-12 raises questions of mixed fact and law. The question as to the appropriate limitation period is one of law. However, the application of the facts to the law is one of mixed fact and law.

As such, it is subject to the standard of reasonableness and the Appellant must show that the Master made a palpable and overriding error in his decision. VI. Discussion A. Limitations Act , s 3 [ 23 ] The Limitations Act provides in s 3(1)(

a) that the Estate of Dr. Sunohara is entitled to immunity from liability in respect of the claim if Mr. Kydd did not seek a remedial order, or file a Statement of Claim, within two years after the date on which he first knew, or in the circumstances ought to have known, that the injuries he sustained were attributable to the conduct of Dr. Sunohara. [ 24 ] The Master said that he was not satisfied that he had all of the evidence necessary to determine whether Mr. Kydd, or his counsel, should have obtained the expert opinion on causation at an earlier time. He held that the issue must be determined by the trial judge. [ 25 ] Section 3(5) (

a) of the Limitations Act imposes on the Plaintiff the burden of establishing that a remedial order was sought

within the two-year limitation period. Accordingly, it is incumbent upon Mr. Kydd to put sufficient evidence before the Court to allow the Court to determine that the claim was brought in time. [ 26 ] The Estate says that the Plaintiff must give a reasonable explanation on proper evidence as to why the information necessary to inform the Plaintiff of the conduct of the Estate was not obtainable with due diligence at an earlier date.

Accordingly, argues the Estate, since the Plaintiff did not put sufficient evidence before the Master to prove that his application to add the Estate was brought within the applicable limitation period, his application must fail. [ 27 ] The Estate has misinterpreted the comments of the Master. He did not say there was insufficient evidence before him but rather, that he did not have all of the evidence necessary to determine whether Mr. Kydd should have obtained the expert opinion on an earlier date.

He then left the issue to be determined by the trial judge “ with the benefit of the full evidence ” . [ 28 ] The Plaintiff says that there was never any reason to seek an opinion in relation to Dr. Sunohara ’ s treatment of him or whether Dr. Sunohara had somehow breached the standard of care owed to him. It was Mr. Kydd ’ s position that he was injured in a hay riding accident on February 17, 2002. He was then seen by the two named Defendants. He was diagnosed with a herniated disc in his neck which required surgery in April 2002.

He then brought an action against the two named Defendants for their alleged failure to recognize the extent of his injury at an earlier date and, in particular, that he had suffered a disc injury as a result of the hay riding accident. [ 29 ] It was in March of 2009 that counsel for Mr. Kydd retained a neurosurgeon for the purpose of obtaining an expert opinion on causation to be used at trial. The neurosurgeon was provided with materials to review, which included Dr. Sunohara ’ s chart.

The Plaintiff asserts that the expert provided a report to counsel in June 2009 indicating that the disc injury likely pre-existed the fall on February 17, 2002 and that Dr. Sunohara ought to have diagnosed it on the Plaintiff ’ s visits to him in January 2002. The Plaintiff says that he had not contemplated Dr. Sunohara being negligent or failing to provide him with appropriate care at any time prior to receipt of the expert ’ s report in June of 2009. [ 30 ] Mr. Kydd saw Dr. Sunohara on three occasions prior to the hay riding accident: January 9, January 23 and February 4, 2002. According to Dr.

Sunohara ’ s chart, he also saw him on February 27, 2002, ten days after the hay riding accident. For some inexplicable reason, Mr. Kydd ’ s visit with Dr. Sunohara on February 27, 2002 is not shown on his Alberta Health Statement of Benefits Paid for that period. The Plaintiff requested a copy of Dr. Sunohara ’ s chart relating to Mr. Kydd on or about January 6, 2005 and received that chart on January 24, 2005. Accepting that the Plaintiff had forgotten about the February 27 visit, this would have been the first time he would have been reminded of it. [ 31 ] The Statement of Claim was issued against Dr.

Ovakporaye and Dr. Abolarin on February 17, 2004. There is no evidence of anything that may have occurred or been seen to prompt a request for Dr. Sunohara ’ s chart in January 2005. I can only assume that it was sought, and then produced, in satisfaction of the Plaintiff ’ s disclosure obligations. The Plaintiff says that his first three visits with Dr. Sunohara in 2002 were in relation to a work related shoulder injury.

While he has no specific recollection of the February 27 visit, he assumes that it too related only to the pre-existing shoulder injury and not to the injuries sustained in the February 17 incident. The note in Dr.

Sunohara ’ s chart does not appear to refer to the incident of February 17 (while portions of the chart are difficult to decipher, the date of February 17 is not apparent). [ 32 ] Counsel for the Plaintiff says that the neurosurgeon was retained to opine firstly on the question of how much worse the Plaintiff ’ s condition is now than it would have been had it been properly diagnosed on a timely basis and secondly on the Plaintiff ’ s long term prognosis. The report has not been disclosed. Counsel says that no opinion was ever solicited from the expert as to the potential liability of Dr.

Sunohara and the receipt of the opinion from the neurosurgeon “ came right out of left field ” . He argues that the date of receipt of the new expert report was the date on which he “ first knew, or in the circumstances ought to have known, ” that his injury was attributable to the conduct of Dr.

Sunohara. [ 33 ] The Plaintiff says that the expert report was sought for the sole purpose of preparing for trial and counsel in these types of actions routinely wait until as close to trial as possible so as to avoid having to repeat this step and also to minimize costs in the event it is never necessary to retain an expert. Further, there was no reason to carry out any investigation in relation to Dr. Sunohara before receiving the expert report.

[34] Section 3(1) of the Limitations Act is a codification of the common law discoverability principle. In Central Trust Co vRafuse, (SCC), [1986] 2 SCR 147, [1986] SCJ No 52 the Court stated that “a cause of action arises for purposes of alimitation period when the material facts on which it is based have been discovered or ought to have been discovered by the Plaintiff bythe exercise of reasonable , diligence” (at 224).

In Peixeiro v Haberman, (SCC), [1997] 3 SCR 549, [1997] SCJ No 31,Major J. stated that it would be unfair to require a plaintiff to bring an action before he could reasonably have discovered that he had acause of action. “The diligence rationale would not be undermined by the application of the discoverability principle as it still requiresreasonable diligence by the Plaintiff.” (at para 39) [35] The Alberta Court of Appeal considered the state of knowledge necessary to start the limitation period running in the case ofNasrin Karim Professional Corp v Bank of Nova Scotia, 2007 ABCA 10, 404 AR 303.

It held: 56 The principle of discoverability does not require perfect knowledge ... Mere suspicion is not sufficient to trigger the running of alimitation period; the plaintiff can be said to have “known” of the claim only when he has some support for his suspicion ... [authoritiesomitted] [36] Where the Plaintiff raises the issue of discoverability, the Plaintiff must adduce evidence of steps taken to investigate theclaim. The Plaintiff need only have possession of sufficient facts upon which to allege negligence.

Additional information, such as amedical opinion, may support the claim and help assess the risk of proceeding but is not required to discover the claim (Lawless vAnderson, 2011 ONCA 102, 276 OAC 75 at para 36). That is, it is sufficient if the Plaintiff knows enough facts to base an allegation ofnegligence against the Defendant.

Once in possession of the facts sufficient to support an allegation, the Plaintiff cannot then waitindefinitely to seek an expert opinion to support the possible claim against an unknowing or unsuspecting Defendant (Parker vChapman, 2007 CarswellOnt 10 (SCJ)). [37] In Soper v Southcott (1998), (ON CA), 39 OR (3d) 737, [1998] OJ No 2799 the Ontario Court of Appealconsidered the issue of whether an expert opinion was necessary to trigger the limitation period.

It held that, in that case, the expertopinion was not necessary but in so finding, the Court stated (at 744): ...In some cases, a medical opinion will be necessary to know whether to institute an action. In other cases, it will be possible to knowmaterial facts without a medical opinion, and the medical opinion itself will simply be required as evidence in the litigation.

In the latterinstances, the time of receipt of the medical opinion is immaterial to the commencement of the running of the limitation period. [38] While the Court found that the expert opinion was not necessary to trigger the limitation period in Soper, it found that anexpert opinion was required to start the limitation period running in Urquhart v Jacklin (1999), (ON CA), 124 OAC11, [1999] OJ No 2985 where it held at para 5: “Clearly, a medical opinion was necessary in order to know that there may have beennegligence by a radiologist ...” [39] In

summary, it is a question of fact as to when the plaintiff has acquired sufficient knowledge of the material fact or facts totrigger the running of the limitation period. The knowledge required is more than a mere suspicion and less than perfect knowledge. Insome cases, the plaintiff will require an expert medical opinion in order to determine whether to commence an action. In other cases, theplaintiff will have knowledge of material facts and the expert medical opinion will only be required as evidence to support the claim.

Inevery case, however, a plaintiff is required to exercise reasonable diligence to acquire the facts necessary to determine whether tocommence an action. [40] In this case, there does not appear to be any reason why the Plaintiff’s suspicions should have been aroused as to the potentialliability of Dr. Sunohara prior to receipt of the expert report in June 2009. On the contrary, the Plaintiff had every reason to believe thathis injury was caused by the hay riding accident and the subsequent treatment by Doctors Abolarin and Ovakporaye. There is noevidence that he saw Dr.

Sunohara with respect to those injuries on February 27, 2002 or at any time thereafter. The evidence suggeststhat the Plaintiff saw Dr. Sunohara about his work related shoulder pain and there does not appear to be any reason for the Plaintiff tohave suspected that this injury was related to the disc herniation. While his counsel did request a copy of Dr. Sunohara’s chart in January2005, there is nothing to indicate that he did so as a result of any suspicion that Dr. Sunohara was, in part, responsible for the Plaintiff’sinjury. The note relating to February 27, 2002 found in Dr.

Sunohara’s chart when received in January 2005 also did not trigger even asuspicion on the part of the Plaintiff that Dr. Sunohara could possibly be responsible for the Plaintiff’s injury.

[ 41 ] On the evidence now before the Court, there does not appear to be any reason why the Plaintiff or his counsel should have taken any steps at that time, such as retaining an expert to provide an opinion respecting Dr. Sunohara ’ s treatment of the Plaintiff in 2002 and whether it caused or contributed to the Plaintiff ’ s ongoing injury. Is the evidence uncertain? [ 42 ] I have referred only to the evidence and submissions put forward by the parties in this application.

Numerous cases have emphasized that it is not desirable to determine the merits of a limitations defence in the context of an application to amend, and where the matter is not clear and additional facts relevant to the issue may be adduced at trial, an amendment should be allowed and the limitations issue determined at trial. (See, for example, Balm v 3512061 Canada Ltd. , 2003 ABCA 98 , 327 AR 149 ; Seidel v Kerr , 2003 ABCA 267 , 330 AR 284 ; Anderson v Airsprint Inc , 2005 ABCA 332 , 380 AR 298 ; Hill v Hill Family Trust , 2007 ABCA 293 , 35 ETR (3d) 171 .) In Balm , Côté J.A. confirmed that there need be only a modest degree of evidence to justify an amendment to pleadings, whether before or after the expiration of the limitation period.

In Seidel , an amendment was allowed where the action involved allegations of a course of misconduct over a long period of time with allegations of conspiracy and fraudulent concealment. In Anderson and Hill , there were disputed facts and evidence and the Courts held that the limitations issue was better left to the trial judge. [ 43 ] As the discussion above illustrates, it is not clear that the limitation period has expired for the Plaintiff to bring an action against the Estate of Dr. Sunohara. Additional facts and evidence relevant to the issue may be adduced at trial.

There is, at least, some evidence that the Plaintiff neither knew nor ought to have known that his injury was attributable to the conduct of Dr. Sunohara until receipt of the expert report in June 2009. The facts alleged as part of this application support the Plaintiff ’ s argument that he exercised the degree of diligence required of him in order to determine the facts necessary to commence and proceed with his action prior to receipt of the expert medical opinion in June 2009. [ 44 ] Accordingly, I am satisfied that the Plaintiff should be entitled to amend his Statement of Claim by adding the Estate of Dr.

Sunohara as a defendant by an administrator ad litem , and the Master did not err in so concluding. I would emphasize that I am not deciding whether the limitation period has expired but rather, simply, that there is sufficient evidence to justify an amendment. The Estate of Dr. Sunohara is at liberty to defend the action in any way it sees fit and if the limitations issue is raised in defence of the action, that issue may be determined by the trial judge with the benefit of hearing and seeing all the evidence. [ 45 ] The Master did not make a palpable and overriding error in his finding.

His decision was reasonable. B. Limitations Act , s 6 [ 46 ] Where a relevant limitation period has expired, s 6 of the Limitations Act provides limited situations in which a claim might still be added to a proceeding already commenced. That

section provides: 6(1) 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. ...

(4) When the added claim adds or substitutes a defendant, or changes the capacity in which a defendant is sued, ... (

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. [ 47 ] In the event that I have erred in determining that there is sufficient evidence to leave the issue of the limitation period to be determined by the trial judge, then I will consider the issue of whether the Defendant has been prejudiced such that the Plaintiff should not be allowed to add the Estate of Dr. Sunohara as a defendant. [ 48 ] Under s 6(5)(

b) the Defendant (or proposed Defendant in this case) has the burden of proving that Dr. Sunohara or his Estate did not receive sufficient knowledge of the added claim within the specified time. [ 49 ] In his Reasons, the Master stated that the issue of prejudice was “ the easiest issue ” for him to deal with. In his view, if it were necessary to consider s 6(4), then “ the death of Dr. Sunohara, his inability to testify, faced with only the charts, possibly with some missing material, ... that would be sufficient to warrant dismissal ” . He found that prejudice exists. [ 50 ] The Plaintiff says that Dr.

Sunohara has put forward no evidence of prejudice. He states that Dr. Sunohara ’ s chart is preserved and it is on the basis of his chart that the Plaintiff ’ s expert provided his opinion. The Plaintiff further states that there is no evidence contrary to Dr. Sunohara ’ s chart and no indication that there will be such evidence. All of this is true. [ 51 ] But the reason this is true is that Dr. Sunohara is dead. It is impossible to determine whether Dr.

Sunohara would have been able to provide evidence to supplement his chart, explain its entries or provide evidence of his usual practice which a trial judge may have accepted as having occurred in this case. The Plaintiff argues that it is “ highly unlikely that Dr. Sunohara would have had an independent recollection of treating the Plaintiff, and even more unlikely that he would have had an independent recollection which differs from his chart ” .

While the Plaintiff argues that it is the Defendant who has the burden of proving that he has not been prejudiced, it is the Plaintiff who has put the Estate in a position where it is unable to put forward that evidence by bringing this application years after the death of Dr. Sunohara. [ 52 ] If I have erred above and the limitation period is found to have expired prior to receipt of the expert opinion in June 2009, then under s 6 of the Limitations Act , Dr. Sunohara would be immune from liability after January 24, 2008, being three years following receipt of Dr.

Sunohara ’ s chart (including one year for service of process). The death of Dr. Sunohara has made it impossible for the Defendant to determine the evidence that might have been given by Dr. Sunohara on the issues before the Court and, specifically, the allegations now being made against him. That, in and of itself, is evidence of significant prejudice. [ 53 ] The finding of prejudice by the Master was both correct and reasonable. VII.

Conclusion [ 54 ] The evidence before the Court at this time provides support for the argument that the Plaintiff did not know, nor reasonably could have known, that his injury was attributable to the conduct of Dr. Sunohara in January and February 2002. It is also arguable that the Plaintiff exercised reasonable diligence in advancing his claim against the existing doctors and had no reason to consider the possible exposure of Dr. Sunohara until he received an expert medical opinion in June 2009.

Accordingly, the Master made no palpable and overriding error in his finding that the amendments should be allowed and left to the trial judge for determination. His decision was reasonable. [ 55 ] If I have erred and it is subsequently found on these facts that the limitation period had expired prior to the receipt of the expert medical opinion, then I would have found that the Estate of Dr. Sunohara would suffer prejudice in maintaining a defence to the claim and the decision of the Master on this issue was both reasonable and correct. [ 56 ] The appeal is dismissed.

Heard on the 12 th day of October 2011. Dated at the City of Edmonton, Alberta this 10 th day of November 2011. Eric F. Macklin J.C.Q.B.A. Appearances: David N. Devere Weir Bowen for the Plaintiffs (Respondents) Alison J. Gray Bennett Jones for the Defendants (Appellants)