Paniccia Estate v. Toal, 2012 ABQB 11

Court of Queen ’ s Bench of Alberta Citation: Paniccia Estate v. Toal, 2012 ABQB 11 Date: 20120109 Docket: 1003 07117 Registry: Edmonton Between: Angela Paniccia, as Executrix for the Estate of Lino Paniccia for the Benefit of the Estate of Lino Paniccia, Angela Paniccia, Danny Paniccia, Melissa Paniccia, Selena Waugh, Jason Paniccia, and Her Majesty the Queen in Right of Alberta Plaintiffs - and - Dr. Stephen Toal Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I.

Introduction.............................................................................................................. Page: 2 II. Chronology.............................................................................................................. Page: 3 A. Pre-trial and Trial Events ........................................................................... Page: 3 B. Trial Decision Paragraph 47 .................................................................... Page: 6 C. Application of Rule 9.13(a) ....................................................................... Page: 7

D. Alternative Cancer Treatments ................................................................. Page: 7 III. Issues...................................................................................................................... Page: 8 IV. Analysis................................................................................................................... Page: 8 A. Court Authority to Revisit the Trial Judgment .......................................... Page: 8 1. Rule 9.13......................................................................................... Page: 8 2.

The Parties’ Positions................................................................... Page: 9 3. Judicial

Interpretation of Rule 9.13............................................... Page: 9 4. Operation of Rule 9.13(a)........................................................... Page: 11 B. Is the Statement of Law in Trial Decision Paragraph 47 Incorrect, and Does it Warrant Revision via Rule 9.13(a)? ..................................................................................... Page: 13 1. Is Paragraph 47 Incorrect?......................................................... Page: 13 a. The Parties’ Positions..................................................... Page: 13 b. Mitchell Estate v.

Labow ............................................. Page: 14 c. Does a Reduced Life Expectancy Cause Death?....... Page: 16 2. Should Paragraph 47 Be Revised?........................................... Page: 18 3. Significant Reduction in Life Expectancy.................................. Page: 19 C.

Interpretation of the Agreement – Special Damages .......................... Page: 21 1. The Special Damages Issue Requires Findings of Fact........ Page: 21 2. Evidence Concerning Special Damages Before the Court.... Page: 22 3. Litigation By Installment............................................................... Page: 22 4. Reliance of the Court on Counsel.............................................. Page: 23 5. Rule 9.13(b).................................................................................. Page: 24 VI.

Costs..................................................................................................................... Page: 26 I. Introduction [ 1 ] This decision flows from a medical malpractice trial conducted in late 2010. A written judgment was released in July 29, 2011, reported as Paniccia Estate v. Toal , 2011 ABQB 326 [the “Trial Decision”]. On September 27, 2011 and November 24, 2011 the parties returned before me to address disagreements that emerged after the trial had been completed, and on the issue of costs. [ 2 ] Mr.

Paniccia developed and ultimately died of a particularly aggressive and difficult to treat form of stomach [“gastric”] cancer. In the Trial Decision I concluded that the Defendant’s negligence had caused Mr. Paniccia to die of that stomach cancer six months earlier than if he had received proper care and treatment. Mr. Paniccia’s gastric cancer was terminal even if he had received correct treatment.

[ 3 ] After the Trial Decision was released the Defendant refused to pay the Plaintiffs’: 1. Fatal Accidents Act , [ FAA ] R.S.A. 2000, c. F-8, s. 8 bereavement damages [s. 8 bereavement damages] and, 2. certain special damages that the Defendant describes as “alternative therapies”. That refusal led the parties to return for resolution of the dispute, which has now subsequently led to a consideration of whether the Trial Decision requires revision. II. Chronology A. Pre-trial and Trial Events [ 4 ] The history of this matter is critical to this decision. Mr.

Paniccia was diagnosed with gastric cancer on November 25, 2009. On April 30, 2010, he and his family initiated a lawsuit against Dr. Toal. They alleged that Dr. Toal had failed to properly investigate Mr. Paniccia’s complaints of stomach discomfort, and that error led to late diagnosis of Mr. Paniccia’s gastric cancer. [ 5 ] Mr. Paniccia died on September 30, 2010. Immediately prior to trial the parties had discussions to reduce the scope of trial issues. The trial commenced on November 29, 2010.

On November 30, 2010, the parties endorsed a document entitled “Agreement Regarding Damages” [the “Agreement”] to restrict the scope of the trial. That document starts with the following statement: WHEREAS the Plaintiffs’, together with the Defendant, Dr.

Stephen Toal (collectively referred to as the “Parties”) have agreed through their counsel to the quantification of certain heads of damages for the purposes of the trial of the within proceedings: [ 6 ] At the beginning of the trial the Plaintiffs’ counsel advised me of the scope of the issues to be determined at trial: The parties are also very close to finalizing an agreement on damages, the agreement on damages isn’t a final number on damages, it is an agreement on certain principles which will avoid the necessity of having the experts on damages testify, and it will leave the court with only I believe two or three issues to decide, one of which is what would been the retirement age of Mr.

Paniccia, and secondly when, if ever, would he have returned to work and how long would his life expectancy would have been. We expect to have that finalized tomorrow, and in that case then we would not need the witnesses on damages. [ 7 ] The following day Defence counsel said the following: We are happy to advise that we have concluded our agreement regarding damages and I do have copies for the court here. ... My lady I will just go through this report or agreement with you briefly.

The purpose of this agreement is to dispense with the testimony of the expert economists in this case required for some of the pecuniary losses that were claimed in the action, and also to quantify for the court some of the ... to quantify for the court the special damages, the bereavement damages under

section 8 of the Fatal Accidents Act , as well as the

section 7 damages under the Fatal Accidents Act. If you look at the agreement, paragraph 7 quantifies the bereavement damages, paragraph 8 quantifies the

section 7 damages under the Fatal Accidents Act and sets out what those are, and

section 9 quantifies what the special damages are, so you won’t need to hear testimony from any of the witnesses on the quantum of those expenses. [ 8 ] Defence counsel noted paragraph 12 of the Agreement which reads:

12. The factors that the Parties have been unable to agree upon, and which the Court will need to determine to calculate the damages described in this Agreement, other than the damages described in paragraphs 2, 3, and 4 of this Agreement, are: (

a) Mr. Paniccia’s likely age of retirement; (

b) When, if ever, Mr. Paniccia would have resumed employment and performance of his household services had the treatment for his cancer enabled him to return to employment or the performance of household services; (

c) Mr. Paniccia’s life expectancy given the nature of his diagnosis of cancer as described by the medical experts in this Action. [ 9 ] The Agreement was entered as an exhibit. Plaintiffs’ counsel did not challenge the statements by the Defence in relation to the Agreement. [ 10 ] At paras. 29-30 of the Trial Decision, I summarized the issues related to liability that were still in dispute: [29] These agreements leave me with two remaining issues. First, I must decide if Dr.

Toal breached the standard of care by either: 1. his diagnosis of gastritis and associated failure to investigate the possibility of gastric cancer, which led to Dr. Toal not referring Mr. Paniccia for further diagnostic investigation (specifically, a gastroscopy) following receipt of the inconclusive barium swallow x-ray report; and 2. his failure to disclose the possibility that Mr. Paniccia had gastric cancer, either:

a) upon receipt of the barium swallow report, or

b) when directly asked by Mr. Paniccia. [30] If I find that Dr. Toal breached the standard of care, I must then determine whether that breach was the actual and legal cause of Mr. Paniccia’s injury or loss. [ 11 ] The Trial judgment also sets out the remaining questions to determine damages. If I concluded that Dr. Toal had injured Mr. Paniccia then I was to investigate a limited set of specific issues: [27] The parties have also agreed that, if liability is established, I need not calculate the amount of damages, as they have entered into an Agreement regarding damages.

That Agreement sets out the agreed amount of s. 7 and s. 8 damages under the Fatal Accidents Act, R.S.A. 2000, c. F-8 (“FAA”), as well as special damages. It also sets out various factors which were agreed between the parties as relevant to the determination of quantum. In relation to damages, the parties confirm that I may restrict my findings of fact to the following questions: 1. Mr. Paniccia’s likely age of retirement; 2. when, if ever, Mr. Paniccia would have resumed employment and performance of his household services had the treatment of his

cancer enabled him to return to employment or the performance of household services; and 3. Mr. Paniccia’s life expectancy given the nature of his diagnosis of cancer as described by the medical experts in the action. [ 12 ] The Trial Decision concluded that: 1. Dr. Toal had been negligent as a consequence of his failure to investigate Mr. Pannicia’s complaints of stomach pain (paras. 106-107); 2. Dr. Toal’s negligence caused Mr. Paniccia to die on September 30, 2010, as proper diagnosis and treatment of Mr. Paniccia’s gastric cancer would have instead resulted in Mr.

Paniccia surviving for an additional six months past September 30, 2010, and then dying of gastric cancer (paras. 209-210); and 3. If Dr. Toal had not been negligent Mr. Paniccia would not have: a. survived to retire (para. 213); b. resumed employment (para. 213); and c. resumed performance of household services (para. 213). B. Trial Decision Paragraph 47 [ 13 ] The Trial Decision included the following paragraph: [47] In Alberta, the FAA provides for certain awards where negligence causes a death.

However this legislation does not operate where there is negligence and as a result a person dies for a certain cause, but at an earlier rather than a later date. This ‘premature death’ is still an injury; the victim has a shortened life. Notably, this paragraph does not relate to any of the issues that were put to the court. [ 14 ] After the Trial Decision was released, the Defendant refused to pay the Plaintiffs s. 8 bereavement damages on the basis that paragraph 47 indicated the Defendant had no legal obligation to pay that kind of damages.

The Plaintiffs disagreed and responded that the Agreement had fixed the amount of s. 8 bereavement damages and that that amount would be payable if the Plaintiffs’ proved at trial that Dr. Toal’s negligence either caused Mr. Paniccia’s death, or shortened his life. [ 15 ] That dispute and the associated question of costs led to the September 27 application to clarify this point.

At that time the chief question for the parties was how to interpret the Agreement, given the scope of the trial. [ 16 ] The statement in paragraph 47 flows from an argument advanced by the Defendant for the first time in his post-trial written final submissions: 385. Because a finding that Mr. Paniccia’s life was merely shortened by the alleged negligence would necessarily mean that Mr. Paniccia would have died in any event, the alleged negligence would not be the cause of Mr. Paniccia’s death and this would not be a

wrongful death case falling within the scope of the FAA . Mitchell Estate v. Labow, [1995] O.J. No. 621 (C.J. Gen. Div.) , aff’d [1988] O.J. No 952 (C.A.) [Defendant’s Supplemental Authorities, Tab 17] 386. In these circumstances, the Estate’s claims for funeral expenses and other special expenses, as well as the dependents’ claims for past and future loss of dependency, housekeeping, and bereavement would not be recoverable. [ 17 ] The Defendant relied on an Ontario judgment, Mitchell Estate v. Labow [1995] O.J. No. 621 (QL), 54 A.C.W.S. (3d) 173 (Ont. Ct. (Gen. Div.)), affirmed on other grounds, [1998] O.J.

No. 952 (QL), 78 A.C.W.S. (3d) 182 (Ont. C.A.) ), as a basis in law for its statement. As I will subsequently discuss in detail, the Mitchell Estate v. Labow trial decision does not stand for the proposition advanced by the Defence, and uses a different rationale to deny the Ontario equivalent of s. 8 bereavement damages.

Further, while the Defendant characterizes this as a case confirmed by the Ontario Court of Appeal, the admittedly brief Court of Appeal decision does not relate to the issue of bereavement damages. [ 18 ] Unfortunately I did not detect this misstatement of law during preparation of the Trial Decision. The Defendant continues to hold that his initial

interpretation of Mitchell Estate v. Labow is correct. C. Application of Rule 9.13(a) [ 19 ] The September 27 hearing was set to resolve the parties’ dispute on costs. A crucial basis for their disagreement was whether the Plaintiffs were owed s. 8 bereavement damages.

That in turn affected the parties’ relative degree of success. [ 20 ] At that hearing I notified the parties that, upon review of the Trial Decision, I had come to the conclusion that: 1. the statement of law in paragraph 47 was probably incorrect, 2. paragraph 47 was obiter and not a necessary part of the Trial Decision, and 3. if the statement of law in paragraph 47 is incorrect, a suitable remedy may be the Alberta Rules Of Court , Alta.

Reg. 124/2010, Rule 9.13(a) [the “ Rules ”, or individually a “ Rule ”] authority to vary a judgment or order, as that would eliminate the requirement for an appeal on that point. [ 21 ] I invited submissions on those points, which were heard on November 24. D. Alternative Cancer Treatments [ 22 ] At the November hearing the Defendant advanced the new argument that he should not be liable for certain special damages that flowed from “alternative therapies” pursued by Mr. Paniccia once he was informed his condition was terminal. The Defendant took the position that, since the Trial Decision concluded that Mr.

Paniccia would have inevitably died of gastric cancer, then Mr. Paniccia, absent Dr. Toal’s negligence, would still have engaged in those alternative therapies once Mr. Paniccia was informed his condition could not be treated by conventional means. If so, those expenditures would have been inevitable and were not caused by Dr. Toal’s negligence. The Defendant now refused to pay those amounts as well.

III. Issues [ 23 ] The following issues are now before me: 1. Do I have the authority, per Rule 9.13(

a) to review and revise the Trial Decision? 2. If I have the authority to revise the Trial Decision, is the statement in paragraph 47 incorrect and does it warrant correction via Rule 9.13(a)? 3. How should I interpret the Agreement between the parties as to the scope of the damages agreed to by the parties, specifically:

a) whether only the quantum of the s. 8 bereavement damages, and not liability to pay them, is admitted, and

b) whether the cost of Mr. Paniccia’s “alternative therapies” is a valid special damages item, or whether those costs would have inevitably been incurred, with or without Dr. Toal’s negligence? [ 24 ] Part of the last issue is potentially affected by my conclusion on whether the statement of law in paragraph 47 is incorrect, as that is the only basis on which the Defendant disputes a s. 8 bereavement damages award. [ 25 ] I will not in this decision comment on the issue of costs, though that was raised in the September 27 hearing, as this decision may possibly assist the parties to resolve that issue. IV.

Analysis A. Court Authority to Revisit the Trial Judgment 1. Rule 9.13 [ 26 ] I have asked the parties to comment on the potential application of Rule 9.13(

a) to revise the Trial Decision. Rule 9.13 states: 9.13 At any time before a judgment or order is entered, the Court may (

a) vary the judgment or order, or (

b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it. [ 27 ] The parties acknowledge that no judgment or order has been entered to date. In this instance I have raised the possibility of a change to the trial judgment without application from the parties. Thus, this is a potential application of Rule 9.13(a).

2. The Parties ’ Positions [ 28 ] The Plaintiffs argue that under common-law principles the Court is not functus , as no formal order has been granted, and in any case the new Rules provide a broader authority for a judge to revisit a judgment ( Rules , 9.12-9.14). [ 29 ] The Defendant suggests a more restrictive

interpretation of the new Rules . He argues that the Court has no basis to review the Trial Decision and that the Plaintiffs should not have another ‘kick at the can’. He suggests that appellate authority on the common-law and Alberta Rules of Court , Alta. Reg. 390/1968, Rule 390 [former Rules ]remains relevant. The proposition is advanced that the Rules should only apply where an issue was not addressed in full, or had not emerged at trial. He suggests that here the

interpretation of the FAA was fully argued and I should not return to that issue. Thus, the Defendant argues that the only remedy is to appeal the Trial Decision comment on the FAA . 3. Judicial

Interpretation of Rule 9.13 [ 30 ] To date there has been minimal application of Rules 9.12-9.14, but the cases to this point have interpreted the provisions as providing a broader authority to the courts to vary a judgment or order. One conclusion that is clear from those cases is that the current Rules provide a broader authority to vary a judgment or order than existed under the former Rules . [ 31 ] Justice Graesser, in Evans v.

The Sports Corporation , 2011 ABQB 478 at para. 15 , 85 B.L.R. (4th) 313, observed that: [15] Reading the plain language of Rule 9.13, I believe that I have extremely broad authority to do what I think is correct in these circumstances. [Emphasis added.] [ 32 ] Rule 9.13(

b) was applied by Justice Topolniski, in 581257 Alberta Ltd. v. Aujla , 2011 ABQB 539 at paras. 16-19 , to reopen a judgment to account for an undisclosed offer. She concluded that was a “good reason” that warranted intervention. I note that in Rule 9.13 the “good reason” language applies only to the Rule 9.13(

b) option to apply to re-open a decision or order, and possibly hear new evidence. [ 33 ] An application under Rule 9.13(

b) was also considered and rejected by Justice Hall in Peters v. Wilson Estate , 2011 ABQB 689 , where a plaintiff sought to enter new evidence and obtain a different result. Justice Hall commented at para. 3 on the operation of Rule 9.13(a): [3] Rule 9.13(

a) clearly gives the Court a broad discretion to vary the judgment or order. It makes no reference to an application being made. It provides an opportunity to the Judge to vary the judgment or order, presumably where the judge has come to a view that it needs to be done before the order or judgment is filed, but after reasons have issued or a decision was made. I consider that the circumstances therein contemplated are those where the Judge, on his or her own, has rethought a matter or wishes to clarify it. [ 34 ] I agree with this description of the scope and operation of Rule 9.13(a).

It appears that this decision will be the first reported case where a judge has considered Rule 9.13(a). I conclude that, while the Rule provides the judge a unilateral authority to make any change the judge considers appropriate, that authority should only be exercised after the judge has: 1. indicated to the parties that the judge is considering varying a judgment or order via Rule 9.13(a), 2. identified the nature of the proposed variation, and

3. provided an opportunity for the parties to make submissions that comment on that proposed variation. In this case that occurred at the September 27 and November 24, 2011 hearings. [ 35 ] In my review of the Rule 9.13(

a) authority, I am mindful of Rule 1.2, the “Purpose and intention of these rules”, which in part reads: 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost effective way .

(2) In particular, these rules are intended to be used ... (

b) to facilitate the quickest means of resolving a claim at the least expense , ... (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments. ...

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it. [Emphasis added] [ 36 ] Previous applications of the Rules have concluded that the ‘purpose’ provision is a substantial basis that guides how a judge should apply the Rules . For example, in Envision Edmonton Opportunities Society v.

Edmonton (City) , 2011 ABQB 29 , 507 A.R. 275, Justice Moen highlighted the crucial interpretive role of Rule 1.2: [47] Under the Foundational Rule of the New Rules, Rule 1.2, however, timeliness and cost-effectiveness is put front and centre alongside the need for a fair and just result . In my opinion, the Legislature in enacting Rule 1.2 is signalling the need to consider timeliness and cost-effectiveness in conjunction with the need for fairness and justice. I would go even further, and say that Rule 1.2 recognizes that a result, to be fair and just, must also be timely and cost-effective .

This makes perfect sense in light of the seemingly inexorable trend toward longer and more expensive trials which put access to the courts out of reach of more and more people. The ordinary citizen in this day and age is hard-pressed to afford a long trial. [48] As a result, I would say that Rule 7.1(1)(

a) must be read in light of Rule 1.2. The effect of doing so signals that the court should be more willing to grant remedies with the potential to provide a more timely and cost-effective result without sacrificing fairness and justice . If the court can narrow the focus of a trial and do away with the necessity for a long trial without sacrificing fairness or justice, it should do so, recognizing that providing litigants with a timely and cost-effective result serves the ends of justice. [Emphasis added] See also Hunka v. Degner , 2011 ABQB 195 ; Donaldson v. Farrell , 2011 ABQB 11 at para. 14 ; Lameman v.

Alberta , 2011 ABQB 396 at para. 9 ; M.E.L. v. B.J.L. , 2011 ABQB 72 at para. 10 ; Vincent v. Moduline Industries (Canada) Ltd. , 2011 ABQB 571 at para. 69 ; IBM Canada Ltd. v. Kossovan , 2011 ABQB 621 at paras. 11-12 ; L.C. v. Alberta (Metis Settlements Child & Family Services Region 10) , 2011 ABQB 12 at paras. 75-77 .

4. Operation of Rule 9.13(a) [ 37 ] I disagree with the narrow

interpretation of Rule 9.13(

a) suggested by the Defendant. It is inconsistent with the plain language of the Rule . I note that Rule 1.7(1) emphasizes that the

interpretation of these provisions should flow from the text itself, “... in light of the purpose and intention of these rules ...”. [ 38 ] Rule 1.2 provides that context, and clearly indicates that the general purpose of the Rules includes and stresses efficiency.

I agree with Justice Moen that “... a result, to be fair and just, must also be timely and cost-effective.” [ 39 ] In light of the general framework of the Rules and the explicit authority provided by Rule 9.13(a), I conclude that a judge may investigate whether an error exists in an order or judgment and, when an error is identified, then consider whether that defect warrants correction.

The potential benefits to that kind of judicial intervention are obvious: 1. an otherwise unnecessary and costly appeal may be averted; 2. if a party does conclude an appeal is warranted after an order or judgment has been changed per Rule 9.13(a), then the appeal court has the benefit of a more fully developed trial consideration of the facts and law, where the trial court has revisited an issue due to:

a) incomplete argument and analysis of an issue,

b) incomplete or incorrect review of facts,

c) an incorrect statement of law, or

d) an issue with ‘emergent’ implications or effects that may have not been fully apprehended during preparation of the order or judgment; and 3. an incorrect statement of law can be corrected that might otherwise confuse future judicial analysis and inappropriately bind lower courts. [ 40 ] Further, the Defendant’s argument that Rule 9.13(

a) should not allow a second ‘kick at the can’ misrepresents the decision in Evans v. The Sports Corporation . There Justice Graesser received a joint agreement by the parties that the facts as concluded at the trial were wrong, and that logically meant the trial judgment had an incorrect result. Justice Graesser agreed that issue had not been examined with sufficient care and revised the judgment accordingly. That was an application under Rule 9.13(b). [ 41 ] Here I act on my own authority, which I conclude is only restricted by the purpose of the Rules , as expressed in Rule 1.2.

If I conclude that paragraph 47 is incorrect, and that revision of that part of the Trial Decision meets the objectives of the Rules , then I am permitted, if not obliged, to revise the Trial Decision accordingly. B. Is the Statement of Law in Trial Decision Paragraph 47 Incorrect, and Does it Warrant Revision via Rule 9.13(a)? [ 42 ] I have concluded that I may apply Rule 9.13(

a) to revise the Trial Decision. That revision is obviously most likely warranted

if the paragraph 47 statement restricting the availability of s.8 bereavement damages is incorrect. 1. Is Paragraph 47 Incorrect? a. The Parties’ Positions [ 43 ] Unsurprisingly, the parties continue to disagree on whether s. 8 bereavement damages are available where a person dies at an earlier date as a consequence of tortious injury. [ 44 ] During the November 24 hearing the Defendant clarified the limits of the scenario in which he alleges no s. 8 bereavement damages are available.

He argued that a “death of a person” is not “caused by a wrongful act, neglect or default” ( FAA , s. 2) where a court concludes a person would die of a specific cause, but that negligent misconduct caused the person to die of the same specific cause, but at an earlier date. [ 45 ] For example, s. 8 bereavement damages would be available where a person with terminal cancer was killed in a motor vehicle accident caused by negligence. The ‘cause’ of death in that case would be the motor vehicle accident, rather than the cancer.

However, if the motor vehicle accident had not directly injured the person with terminal cancer but instead led the cancer patient to miss a treatment, and that missed treatment shortened the patient’s life, then s. 8 bereavement damages would not be available because the ‘cause’ of death was the terminal cancer, rather than the motor vehicle accident. This dichotomy is expressed in the “but for” test for tort causation: Resurfice Corp. v. Hanke , 2007 SCC 7 at paras. 21-22 , [2007] 1 S.C.R. 333. [ 46 ] The Defendant distinguishes negligence that “causes death” from negligence which “accelerates death”. Dr.

Toal did not “cause” Mr. Paniccia’s death, the cancer caused his death. Dr. Toal merely ‘advanced’ an existing and inevitable process. The Defendant relies on Mitchell Estate v. Labow as authority that supports this position. He now also argues that the quantum of s. 8 bereavements damages are a kind of windfall, given that Mr. Paniccia would have only recovered minimal amounts had he survived to trial. [ 47 ] The Plaintiffs argue that the

interpretation of the FAA in paragraph 47 is incorrect. They present a detailed review of the development of the current legislation that they say explains the purpose of the FAA and s. 8 bereavement damages. They submit that the presumed remedial character of the legislation (

Interpretation Act , R.S.A. 2000, c. I-8, s. 10) would be compromised by the

interpretation advanced by the Defendant. But the chief focus of the Plaintiffs argument is their observation that, as death is inevitable, any death that results from negligence is an “accelerated” death. That, they argue, makes the Defendant’s

interpretation of the FAA an absurdity that causes unjust results. [ 48 ] In their written arguments the Plaintiffs provide a number of hypothetical scenarios to illustrate this alleged absurdity. The final hypothetical is particularly relevant: A Plaintiff has a heart condition and will eventually die of a heart attack in 10 years. In order to survive the10 years with such a heart condition the Plaintiff will need to be on certain medication. The Plaintiff’s cardiologist negligently forgets to tell the Plaintiff that he needs to take the medication and does not prescribe any medication.

As a result the Plaintiff dies of a heart attack 10 years earlier than he would have if he had taken the medication. The cause of death was heart attack and that would have been the inevitable cause of death 10 years from now. Does that mean the Plaintiff’s family members do not have a claim under the FAA ? It is submitted they clearly do and the position put forward by the Defendant leads to absurd results. b. Mitchell Estate v. Labow [ 49 ] This is a convenient point to examine and dispose of Mitchell Estate v. Labow , prior to my analysis of the proper construction of the FAA .

I do not disagree with the analysis or results of that decision, but instead with how it has been characterized by the Defendant. I specifically disagree with the Defendant’s claim on a key fact:

[i]t is clear from the judgment that [the plaintiff’s] life was shortened somewhat by the delay in diagnosis, although the court did notascribe a specific number of days or months to it. [50] Mitchell Estate v. Labow is a medical malpractice decision where the plaintiff had malignant melanoma, a particularlyaggressive form of skin cancer. The plaintiff had identified a suspicious mole that was excised, examined, and diagnosed as benign.Unfortunately, that examination and diagnosis was incorrect, as the mole was clearly a melanoma (para. 24).

The trial judge concludedthat misdiagnosis was negligent (para. 43). [51] Much of the judgment then considers whether that negligence injured the plaintiff. Justice Rutherford concluded the cancer’sprogression was inevitable, and that the plaintiff would have had the same life expectancy even if the diagnosis following the initialbiopsy had been correct.

Since the passages that describe this conclusion are apparently the basis for the Defendant’s arguments, it ishelpful to review these in detail: 88 After a thorough review of the evidence, I am satisfied that it is most probable that by August 3, 1984 when the mole was removedfrom Mrs. Mitchell's thigh, it was a melanoma tumour that had progressed and grown to a very aggressive state; a very bad tumour, toparaphrase Dr. Guerry, and tumour cells had penetrated the vascular and lymph systems and been transported throughout her body.

Thelack of any sign of recurrence of tumour at the original site together with the theory advanced most strenuously by Dr. Shibata, which Iaccept, that in most cases metastatic spread is as a result of migration of tumour cells from the primary site, lead me to conclude that byAugust, 1984 Mrs. Mitchell most probably had stage III disease. I do not believe that the evidence supports the proposition that had thetumour been properly identified at that time, the conventional treatment of the day, or of today for that matter, would have led to anysignificantly longer survival for Mrs.

Mitchell. ... 91 The evidence persuades me that if the mole excised on August 3, 1984 had been correctly identified and the conventional treatmentof wide excision and other examinations and tests had been undertaken, Mrs. Mitchell would have died from the disease in any event andher life could not be expected to have been extended appreciably. I don't see this case as even raising what must, since Laferrière v.Lawson, (SCC), [1991] 1 S.C.R. 541, no longer even exist as a possible head of recovery, namely, loss of chance. WhileDr.

Jochimsen used the term "loss of a chance of being cured" in his evidence, and while reference by the plaintiffs' experts to the data inthe statistical models was to demonstrate that Mrs. Mitchell's death occurred in the face of what were her "chances of survival", theevidence presented simply leaves me no basis on which to conclude that the misdiagnosis of Mrs. Mitchell's tissue biopsy led to a lack oftreatment which in turn cost her some discernible chance she might otherwise have had to survive the aggressively growing cancertumour which had already spread within her body.

By August 3, 1984, the malignant melanoma tumour had, according to the evidence Iaccept as persuasive, become a very "bad" tumour, microscopically present in a number of places in her body and taking hold there. Bythis time, she had passed the point at which she could have been a survivor through surgical removal of the primary tumour. [Emphasisadded.] [52] The trial judge concludes that non-negligent treatment would not have led to “any significantly longer survival” (para. 88) and“her life could not have been extended appreciably.” (para. 91).

Restated, the plaintiff would have died on about the same date,irrespective of the doctor’s negligence. This judgment does not support the Defendant’s argument that an ‘accelerated death’ is notcaused by the ‘accelerant’. The Defendant’s claim that “... [i]t is clear from the judgment that [the plaintiff’s] life was shortenedsomewhat by the delay in diagnosis” is not supported by Justice Rutherford’s comments. [53] In Mitchell Estate v. Labow, since the plaintiff’s life expectancy was not appreciably shortened by the negligence, the deathwas not caused by the negligence (paras. 92. 99).

Justice Rutherford therefore denied the claim by the plaintiff’s husband and daughterfor Family Law Act, R.S.O. 1990, c. F-2, s. 61 bereavement type damages (paras. 103, 108, 111), loss of housekeeping (paras. 103, 110-111), and special damages (paras. 103, 109). [54] The judgment continues to consider a very interesting form of injury.

Justice Rutherford concludes that, even though theplaintiff would have died on about the same date, earlier and correct diagnosis would have prevented the need for painful surgicaltreatment to the plaintiff’s lymph nodes (paras. 92-99), and that was an injury that warranted compensation by general damages (paras.101-102).

[ 55 ] The Mitchell Estate v. Labow trial decision was appealed to and affirmed by the Ontario Court of Appeal. That decision is very brief, and confirmed three points: 1. review was not appropriate for the trial’s findings of fact:

a) on the progression of the melanoma (para. 1), and

b) which surgeries were a consequence of the defendant’s negligence (para. 2); and 2. that the $10,000.00 award of general damages for the pain and suffering caused by the unnecessary lymph node surgery was appropriate (para. 3). [ 56 ] None of these conclusions relate to the Defendant’s proposed legal principle, nor the trial conclusion that the plaintiff’s life expectancy had not been reduced by the negligence and therefore death was not caused by that negligence. The most favorable

interpretation of Mitchell Estate v. Labow for the Defendant is that Justice Rutherford concluded that an FAA -type bereavement claim cannot be advanced where negligence has not “significantly” affected the date of death. I will return to that question later in my analysis. [ 57 ] In conclusion, I disagree with the Defendant’s

interpretation of Mitchell Estate v. Labow and the position taken by him in his post-trial arguments. I do not agree that it stands for the proposition in the Defendant’s final arguments, that: … a finding that Mr. Paniccia’s life was merely shortened by the alleged negligence would necessarily mean that Mr. Paniccia would have died in any event, the alleged negligence would not be the cause of Mr. Paniccia’s death and this would not be a wrongful death case falling within the scope of the FAA . [ 58 ] I conclude that Mitchell Estate v.

Labow is not relevant to the present case, beyond its conclusion that, to cause death, negligence must reduce life expectancy to a significant or beyond a de minimus degree. c. Does a Reduced Life Expectancy Cause Death? [ 59 ] The Plaintiffs argue that the paragraph 47

interpretation of the availability of s. 8 bereavement damages is incorrect. I agree. [ 60 ] The Defendant attempts to couch his arguments in ‘but for’ test language: ‘but for the gastric cancer Mr. Paniccia would not have died on September 10, 2010.’ The ‘cause’ of his death is gastric cancer, not Dr. Toal. However, the ‘but for’ language that the Defendant appears to consider crucial can also be used to implicate Dr. Toal. The court also decided that ‘but for’ Dr. Toal’s negligence Mr. Paniccia would not have died of cancer on September 10, 2010.

This illustrates how the Defendant’s argument is excessively formulaic and turns on semantics rather than the manner in which misconduct can lead to deleterious consequences. As the Plaintiffs have illustrated, the Defendant’s

interpretation leads to absurd results. In particular, the Defendant’s argument in response to the hypothetical scenarios proposed by the Plaintiffs makes no sense. [ 61 ] The possibility that a person’s negligence may lead to a substantially earlier death, though by the same cause, is far from impossible. Modern medicine and science has led to treatments that now routinely stabilize what were formerly fatal conditions.

Common-place examples of this revolution include the discovery and purification of insulin, which allows diabetics to live full and healthy lives, and the succession of increasingly effective pharmaceutical treatments to stabilize the condition of persons infected with the Human Immunodeficiency Virus. If a person were to take steps to deny either group their medication then that would, predictably, lead to deaths. But can one really say that those deaths were instead caused by diabetes or the Human Immunodeficiency Virus?

These, and the Plaintiffs’ hypotheticals, are some examples that illustrate the absurd result that flows from the Defendant’s argument that death from mechanism X at an earlier date does not cause death if mechanism X would have predicably led to death at a subsequent point.

[62] An ‘absurd

interpretation’ is described by Justice Iacobucci in Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27 at 43, 154 D.L.R. (4th) 193 as an

interpretation that: ... leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it isincompatible with other provisions or with the object of the legislative enactment. [Emphasis added.] That statement captures my evaluation of the Defendant’s position. [63] Other elements of the Defendant’s arguments are equally problematic. In his November 24 written argument the Defendantsays this: ... If Mr. Paniccia were alive at the time of trial, there would have been no claim under the FAA for $255,000 for bereavement.

Mr.Paniccia would have had a claim for a shortening of his life by 6 months. The case law indicates this would have been a nominal amountand certainly not $255,000. Why then should his family be entitled to claim $255,000 simply because he died before trial, when thecause of his death was terminal gastric cancer? [64] This argument is troubling for a number of reasons. First, it asks the court to evaluate whether the Legislature was correct insetting the FAA awards; and inquire when the quantum of an award is or is not justified.

The Legislature set up this scheme and I have noauthority to determine whether those sums are or are not correct. That is a question of policy. Should this Court test and then changeamounts mandated by legislation? Of course not; the Legislature has provided a scheme to quantify those amounts. [65] Second, the Defendant evaluates the value of life and companionship by a claim for employment and domestic service losses.Those are two radically different forms of damages.

I cannot understand how it would be correct to evaluate the trauma of the loss of afamily member by nothing other than that death’s economic consequences. The Defendant’s analysis would arguably also invalidaterecovery of loss of consortium damages authorized by the Tort-feasors Act, R.S.A. 2000, c. T-5, s. 2.1. [66] Though I will not conduct a detailed review of the history of legislation in Alberta that has dealt with the scope of tort actionwhere the injured party dies, I agree with the analysis advanced by the Plaintiffs.

That, however, is merely an additional basis on whichto conclude that a ‘death accelerated’ is a ‘death caused’. [67] This issue requires an exercise of common-sense in light of the remedial function of the FAA. There is no logical basis to denythe family of a deceased tort victim their legislatively mandated bereavement and funeral expense awards. I therefore conclude that thestatement of law in paragraph 47 is incorrect. 2. Should Paragraph 47 Be Revised? [68] I have concluded that the statement in paragraph 47, that s. 8 bereavement damages are not available where negligenceshortens a life, is incorrect.

The next step is to evaluate whether that error is one that requires correction by Rule 9.13(a). [69] I conclude that it does. In my consideration of Rule 9.13(a), I identified factors that are relevant where a judge considersrevision of an order or judgment on the judge’s own authority. Some of those factors are relevant here. [70] The Defendant asserted that the

interpretation of the FAA was now a question for appeal. Perhaps so, but I hope that my moredetailed analysis here will make an appeal on that issue unnecessary and save both parties the costs of a legal proceeding of that kind. Ifthe Defendant does appeal my conclusion on this point, then the Court of Appeal will have the benefit of my analysis of the relevant law.

[ 71 ] Another strong reason to correct the misstatement in paragraph 47 is that the incorrect statement of law may confuse future judicial analysis and incorrectly bind lower courts. This is a potential mischief that deserves immediate attention. [ 72 ] Last, paragraph 47 is ultimately irrelevant to the Trial Decision. Thus, varying that paragraph has no effect on the trial’s outcome. The misstatement in paragraph 47 is obiter . Defence counsel argues the Trial Decision comment on the availability of FAA bereavement damages is not obiter .

However she agreed that obiter is any statement that is “unnecessary to the disposition of the issues of the action.” The scope of the issues for trial was set at the beginning of trial. That list of issues did not challenge whether the s. 8 bereavement damages were available to the Plaintiffs. That renders the paragraph 47 comment on the FAA as, at best, obiter . [ 73 ] In the present case I see no reason not to vary the Trial Decision to correct the incorrect statement of law in paragraph 47 and, in paragraphs 39, 72, and 73 above, set out several reasons for doing so.

I therefore will amend the Trial Decision to eliminate paragraph 47 and add a corrigendum to the Trial Decision that references this decision as the explanation for that amendment. 3. Significant Reduction in Life Expectancy [ 74 ] That could end my analysis on the question of s. 8 bereavement damages. However, given the arguments of the parties, it is perhaps helpful to go one step further. My

interpretation of Mitchell Estate v. Labow is that case stands for the principle that a death is not ‘caused’ when tortious misconduct does not “significantly” affect the life expectancy of the injured person. I concluded that Dr. Toal’s negligence cost Mr. Paniccia six months of his life. [ 75 ] This was not an issue that was raised at the beginning of trial. Some comments from the Defendant in argument suggest the result at trial (that Mr. Paniccia’s life expectancy was reduced by Dr. Toal’s negligence) was an unexpected one.

I think the intent of these comments is to suggest that the potential availability or unavailability of s. 8 bereavement damages was an ‘emergent’ question that the parties could not have anticipated and therefore did not argue. [ 76 ] I find that very difficult to accept. Here, experienced counsel faced three possible results if Dr. Toal was found negligent: 1. Dr. Toal’s negligence did not injure Mr. Paniccia as Mr. Paniccia would have died on the same date despite Dr. Toal’s negligence; 2. absent Dr. Toal’s negligence Mr. Paniccia’s gastric cancer would have been identified, treated, and cured; therefore Dr.

Toal’s negligence caused Mr. Paniccia’s death; and 3. Dr. Toal’s negligence led to late treatment of Mr. Paniccia’s gastric cancer with the result that Mr. Paniccia had a reduced life expectancy. [ 77 ] Mr. Paniccia’s probable life expectancy was a crucial issue at trial and the subject of expert testimony and extensive Defence argument. I can only conclude that the Defence was alive to the possibility that Dr. Toal’s alleged negligence could affect Mr. Paniccia’s life expectancy.

I therefore conclude that the result at trial was foreseeable, as would be the opportunity to raise the availability of s. 8 bereavement damages where negligence led to a shortened life. [ 78 ] The next question is whether six months is “insignificant”. This was not an issue that I was asked to decide at trial and is a question of mixed fact and law. As I will later explore in greater detail, it is generally inappropriate to open a new question of fact and law after a trial has concluded. Here, by coincidence, I have the necessary facts to explore this issue fully.

Since this question is apparently relevant to the position taken by the Defendant, I will continue to evaluate whether Dr. Toal’s negligence had a significant effect on Mr. Paniccia’s life-expectancy. [ 79 ] As a general observation, I do not think six months of a person’s life is insignificant. At trial the Plaintiffs argued that an average Canadian male has a life expectancy of about 82 years. On that scale, Dr. Toal’s negligence cost Mr. Paniccia 0.61% of his life expectancy. However, that is not what I consider to be the most useful measurement of how Dr. Toal’s negligence affected Mr.

Paniccia’s life expectancy. Mr. Paniccia was diagnosed with inoperable gastric cancer in November, 2009 and survived for an additional nine months. I concluded at trial that, if Mr. Paniccia’s complaints had been investigated in a non-negligent manner, he would have been diagnosed with gastric cancer in January, 2009 (Trial Decision, para. 176). My conclusion was that, on a balance of probabilities, Mr. Paniccia’s gastric cancer would have been terminal even at that earlier point, but with treatment Mr.

Paniccia would have survived for another 26 months (Trial Decision, paras. 208-209). [ 80 ] I think these dates provide a better way to understand what Dr. Toal’s negligence cost Mr. Paniccia - that negligence reduced Mr. Paniccia’s post-diagnosis life expectancy by 65%.

I think six months of life is significant for anyone, but particularly for a person who faces terminal illness and a last opportunity to address their personal affairs, spend time with their family and friends, and perhaps come to peace with their impending death. [ 81 ] Damages for bereavement would logically be warranted where a person was deprived of their best opportunity to share time and companionship with their loved ones. That is what the Plaintiffs lost, and the FAA attempts to compensate where ‘death is accelerated’. I have no difficulty in concluding that Mr.

Paniccia’s loss of life expectancy as a consequence of Dr. Toal’s negligence was far more than ‘ de minimus ’. [ 82 ] I therefore conclude that, not only is a FAA , s. 8 bereavement award generally available where negligence causes a person to die at an earlier point, but also that, in the case of Mr. Paniccia, the negligence of Dr. Toal caused a significant loss of life expectancy so that, to use the language of the FAA , “death of a person” was “caused by a wrongful act, neglect or default”. C.

Interpretation of the Agreement – Special Damages [ 83 ] My conclusion in relation to paragraph 47 addresses the question concerning an award of s. 8 bereavement damages to the Plaintiffs. While the Defendant has questioned whether Dr.

Toal’s negligence is really ‘worth’ an award of $255,000.00 for bereavement, my understanding is that the Defendant has not challenged the authority of the Legislature to set an award at that level. [ 84 ] I therefore will not attempt to interpret whether the Agreement says the parties agreed that s. 8 bereavement damages of $255,000.00 would be paid to the Plaintiffs if the Plaintiffs at trial proved that either Mr. Paniccia’s death was a consequence of Dr. Toal’s negligence or that Mr. Paniccia died at an earlier date as a consequence of Dr.

Toal’s negligence. [ 85 ] That leaves the issue of whether the Plaintiffs have a right to claim the full special damages described in clause 9 of the Agreement. Before entering into my analysis on that final question, I will review a dispute between the parties in the September 27 and November 24 hearings and a decision I made in relation to it. The Plaintiffs’ September 27 materials included some email correspondence between the parties’ counsel which potentially relates to the scope of the Agreement. Defence counsel argued that the principles of contract

interpretation mean those communications are not appropriate as evidence or necessary for the Court to understand the scope of the Agreement. At the November 24 hearing I was asked if I wished to review other allegedly potentially relevant exchanges between counsel, which I declined. I did not then, and do not now, believe I require any messages exchanged by the parties’ counsel to evaluate the meaning and scope of the Agreement.

My analysis that follows does not take into account the emails included in the Plaintiffs’ September 27 materials. [ 86 ] Further, my analysis will not immediately move to the Agreement but will first examine the manner in which the issue of special damages arose at this late point in the proceeding. 1. The Special Damages Issue Requires Findings of Fact [ 87 ] On the remaining issue, of whether special damages ought to be awarded for the alternative medicine costs, in his November 24 argument the Defendant says that: ... It is plain and obvious from this Honourable Court’s ruling that Mr.

Paniccia would have been terminally ill regardless of any delay in referring him for gastroscopy. Therefore, Mr. Paniccia would have sought out these alternative therapies in any event.

[ 88 ] The Plaintiffs respond that that conclusion is not plain and obvious, and that, in the absence of Dr. Toal’s negligence, Mr. Paniccia may have: ... accepted his fate and spent more quality time with his family during his last days instead of going to the U.S. to try to correct the wrong done to him by Dr. Toal. [ 89 ] The nature of this issue is crucial. The relevant question is: In the absence of negligent injury by Dr. Toal, would Mr. Paniccia have sought alternative cancer treatments if he was diagnosed with terminal cancer? This is a question of fact.

I am asked to determine whether I conclude, on a balance of probabilities, that in a certain scenario a party would have made a particular choice. [ 90 ] The Defendant is asking me to make a finding of fact where that fact was not explored at trial. Further, the parties at the beginning of trial told me that they had bound themselves in the Agreement to a specific set of issues that would determine the amount of damages, if liability was found. 2.

Evidence Concerning Special Damages Before the Court [ 91 ] The “special damages” issue advanced by the Defendant is a question of fact and one that I have concluded could have been raised at trial. The Plaintiffs argue that additional evidence could and would have been advanced at trial in relation to this point if the allegation that certain special damages were inevitable had been understood to be a live issue. I accept that proposition, and further observe that the most relevant source for this kind of evidence would have been Mr. Paniccia. At this point it is too late to obtain evidence from him.

Further, the Defendant has denied the need for evidence on this point, as he asserts it is “plain and obvious” that the alternative therapy special costs were inevitable. It is not plain and obvious to me. [ 92 ] There is an additional question of whether or not the “special damages” category is in whole or part properly characterized as “alternative therapies”. No detailed argument was made on this point at trial, presumably because the quantum of special damages was supposedly set by the Agreement, as that contract was explained to the Court.

The receipts that are the basis for the special damages claim were contained in Exhibit 30 of the agreed exhibits. Cursory review of that exhibit shows receipts for many kinds of medications. I have no basis on which to conclude which, if any, are “alternative therapies”. [ 93 ] I conclude I do not have the evidence that it is “plain and obvious” that the Plaintiffs have no entitlement to special damages. Further, I conclude that it is unfair to the Plaintiffs that the Defendant at this late stage raises the issue of entitlement to special damage on a question of fact. 3.

Litigation By Installment [ 94 ] I have previously observed how the Rules instruct the Court to act in an efficient, timely and cost-effective manner. That obligation is also shared by the parties to litigation. 1.2(3) To achieve the purpose and intention of these rules the parties must , jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the

least expense … [Emphasis added] This is not only a general principle but also a mandatory requirement for persons involved in litigation. They are obliged to identify issues in dispute and conduct timely, cost-effective litigation. [ 95 ] The Defendant’s post-trial introduction of the “special damages” issue does not meet that standard. Rather, it is an example of an inefficient and procedurally problematic practice commonly referred to as “litigation by installment”.

One example of litigation by installments is where a party, after a judgment, raises an issue that reasonably could have been raised at an earlier point: Argentia Beach (Summer Village) v. Warshawski , 1991 ABCA 322 , 120 A.R. 27. [ 96 ] Litigation by installment is discouraged by the courts. For example, in Garland v.

Consumers ’ Gas Co. , 2004 SCC 25 at para. 90 , [2004] 1 S.C.R. 629, Iacobucci J. endorsed the observation of the Chief Justice of the Ontario Court of Appeal that litigation by installment “... is to be avoided where possible, as it does little service to the parties or to the efficient administration of justice.” In Mainwaring v. Alberta , 2000 ABCA 12 at para. 6 , 75 Alta. L.R. (3d) 255, Côté J.A. observed that “[l]itigation by instalments is a grave evil to avoid carefully ...”. Our Court of Appeal has categorized litigation by installments as an abuse of process: Royal Bank v.

LRSCO Investments Ltd. , 1994 ABCA 116 at para. 11 , 149 A.R. 241. [ 97 ] The Defendant has not provided any reason why the issue of special damages was not addressed at trial. If the Defendant believed the alternative treatment costs were inevitable and therefore not compensable in any event, why did he indicate at the commencement of trial that quantum of damages had been agreed to (other than the three factors to be specifically addressed, which do not touch on the alternative treatment costs)?

Why were they included in the agreed quantum if the Defendant took the position he would not have to pay them regardless of the outcome on liability? I conclude that the late introduction of this issue is an example of litigation by installment and an abuse of process. 4. Reliance of the Court on Counsel [ 98 ] Lawyers are called “officers of the court” because that is their relationship to the court. They do not merely appear in court, they are a part of the court. Judges necessarily rely on counsel to guide the trial process.

Judges cannot know the minds or intentions of the parties, other than what they are told. [ 99 ] I have previously indicated how Defence counsel explained the scope of issues that remained for the court to decide in relation to the calculation of damages. That limited set of issues was restated at para. 394 of the Defendant’s January 7, 2011 post-trial argument. [ 100 ] The Court is now confronted by a new issue of fact relating to damages which was, for some reason, not argued at trial.

Parties do not assist a court when they engage in this kind of conduct; it impedes the conduct of proceedings in an efficient and timely manner, and hampers the Court’s best attempts to reach findings of fact. [ 101 ] Counsel are required to conduct proceedings on behalf of their clients in a manner that is consistent with their obligations under the Rules. The manner in which the “special damages” issue has emerged in this trial may be in breach of the Agreement between the Parties, but it is also inconsistent with the Defence counsel’s obligations to this Court.

Regardless of the text of the Agreement, the Court should be able to rely on counsel for an accurate statement of what a party will argue is in dispute in a trial. 5. Rule 9.13(b) [ 102 ] As previously referred to, there is a mechanism by which a litigant can ask an Alberta trial court to address a question not asked at trial, and that is Rule 9.13(b): 9.13 At any time before a judgment or order is entered, the Court may

... (

b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it. [ 103 ] This would have been the appropriate mechanism by which the Defendant could have asked me to expand the trial analysis on damages to consider whether certain special damages claimed would have been the inevitable result of a diagnosis that Mr. Paniccia had untreatable gastric cancer and therefore were not a result of Dr. Toal’s negligence. [ 104 ] I have previously noted that I lack the factual evidence to evaluate what the Defendant claims is so “... plain and obvious.” Rule 9.13(

b) could allow the Defendant (and Plaintiffs) to provide the necessary factual foundation for my analysis. [ 105 ] However, had the Defendant applied under Rule 9.13(

b) for the Court to extend its findings on damages, I would have rejected that application as there is no “good reason to do so”. That flows from three facts: 1. late introduction of a foreseeable issue is litigation by installment and an abuse of process, 2. the Plaintiffs are unfairly prejudiced, as they are unable to advance the most relevant evidence of Mr. Paniccia’s probable conduct had Dr.

Toal not been negligent, and 3. when the parties agree to limit the scope of a court’s investigations, the Court should be able to rely on an explicit and clear statement by counsel as to the issues to be decided by the Court. 6. Conclusion - Special Damages [ 106 ] I refuse to entertain the special damages issue raised in the Defendant’s November 24 arguments as a consequence of my conclusion that the late introduction of the special damages issue is unfair, an abuse of process, and contrary to the explicit trial submissions by the Defendant.

I have also concluded that, if the Defendant had taken the appropriate step of making an application under Rule 9.13(b), to request the Court evaluate a new question of fact, I would have refused that application. The Defendant had the opportunity to raise and argue entitlement to special damages at trial. He chose not to pursue that opportunity. [ 107 ] Defence counsel told me that her client had agreed to pay a total of $46,235.79 in special damages. Dr. Toal was responsible for Mr. Paniccia’s premature death. That agreed sum is due to the Plaintiffs. 7.

Interpretation of the Agreement [ 108 ] That conclusion means I do not have to interpret the Agreement. Nor do I have to determine whether, properly interpreted, that document indicates that the Defendant agreed to pay $46,235.79 in special damages if the Plaintiffs established Dr. Toal had injured Mr. Paniccia by reducing his life expectancy. [ 109 ] If I had to interpret the Agreement, I would have favoured the

interpretation advanced by the Plaintiffs. Here, the parties put in place an Agreement to limit the scope of the trial to minimize cost and complexity, and presumably to avoid the “grave evil” of litigation by installment. The most logical

interpretation of the Agreement is to meet that objective. To conclude otherwise would be assume that two highly experienced trial counsel had decided to defy common sense and approved litigation procedure, and adopt a procedure that could result in additional ‘mini-trials’, each with their own findings of fact.

[ 110 ] Further, that objective is also consistent with how the trial proceeded, until post-judgment when the Defendant suddenly advanced its new special costs argument. I think that, alone, provides an adequate basis to conclude that the Defendant has breached the Agreement by advancing the new special damages argument. In effect, the

interpretation suggested by the Defendant defeats the purpose of an agreement to streamline the trial process and minimize the associated costs. [ 111 ] There is an additional and unusual tool available here to assist the Court in understanding the nature and intention of the Agreement. Unlike most contract disputes, I had the opportunity to personally observe the execution of the Agreement by its parties. It is trite law that the scope of a contract is set by the intentions of the parties at the time the agreement was made.

To hold a trial which seems, for all appearances, to only relate to a defined set of issues, then post-trial raise a further issue that may have been incorporated in the original trial scope is inconsistent with the manner in which the issues were framed to the court, and the way I observed the trial proceed. [ 112 ] Further, the

interpretation of the Agreement advanced by the Defendant is conduct inconsistent with the statements and obvious intention of the Defendant in its conduct of the trial itself. Defence counsel explicitly indicated the scope of the damages issues [see para. [8] above]. Damages flow from tortious misconduct and injury. With those prerequisites proven by the Plaintiffs, damages are now due. V. Conclusion [ 113 ] Paragraph 47 of the Trial Decision will be removed, per Rule 9.13(a). The Defendant has no basis to refuse to pay s. 8 bereavement damages.

The Plaintiffs are due the $256,700.00, consistent with the Defence’s statements at trial. The Defendant failed to challenge entitlement to special damages at trial, so $46,235.79 is due to the Plaintiffs as a consequence of Dr. Toal’s negligence and its resulting injury to Mr. Paniccia. VI. Costs [ 114 ] In Polar Ice Express Inc. v. Arctic Glacier Inc. , 2009 ABCA 20 at para. 21 , 446 A.R. 295, the Court of Appeal clarified that solicitor-client costs are appropriate where misconduct occurs during a legal proceeding. Recently Moen J., in Brown v.

Silvera , 2010 ABQB 224 at paras. 29-42 , 488 A.R. 22, has reviewed the bases on which solicitor-client costs, or full indemnity solicitor and own client costs may be ordered; see also Evans v.

Sports Corp. , 2011 ABQB 616 . [ 115 ] I agree with Justice Moen’s analysis of elevated cost awards, but add that I conclude a breach of the general requirements in Rule 1.2(3) is also a basis for elevated costs, though that kind of misconduct obviously can be captured by some of the costs factors identified in Rule 10.33. [ 116 ] I have concluded that the timing and nature of the Defendant’s special damages issue advanced in his November 24 submissions: 1. unfairly compromised the Plaintiffs’ ability to establish the factual basis for an opposing position, 2. was litigation by installment which is an abuse of process, 3. was contrary to the Defendant’s Rule 1.2(3)(

a) obligation “... to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense”, and

4. represents conduct that unnecessarily lengthened this proceeding ( Rule 10.33(2)(a)), was an improper step ( Rule 10.33(2)(d)), and was a serious form of litigation misconduct (Rule 10.33(2)(g)). [ 117 ] Considering these factors, I order the Defendant pay the Plaintiffs’ costs to respond to the special damages argument on a solicitor-client basis. The only reason I have not ordered full indemnity costs is my conclusion that Rule 9.13(

b) offers the Defendant a post-trial and judgment mechanism to raise the issue of entitlement to some special damages. As I have previously commented, I would have rejected that application, had the Defendant followed the appropriate mechanism and not forced the Plaintiffs to engage in a full argument on that point. [ 118 ] If the parties cannot agree on the remaining costs they can bring the matter back before me by contacting my assistant within 30 days of receiving this Judgment. Heard between the 27 th day of September and the 24 th day of November, 2011.

Dated at the City of Edmonton, Alberta this 9 th day of January, 2012. D.L. Shelley J.C.Q.B.A. Appearances: B.A. Guido and A.W. Heil Odishaw & Guido for the Plaintiffs V.R. Prather and A.L. Froese Bennett Jones LLP for the Defendant