JA v Turner, 2012 ABQB 28

Court of Queen ’ s Bench of Alberta Citation: JA v Turner, 2012 ABQB 28 Date: 20120116 Docket: 0503 03387 Registry: Edmonton Between: JA, an Infant by Her Next Friend and Mother TA Plaintiff - and - Louise Rejeanne Turner Defendant Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________ [ 1 ] This is an application brought by the Defendant, Louise Rejeanne Turner, seeking the following:

a) An order granting the Defendant leave to amend her Statement of Defence;

b) An order adjourning the trial of this matter;

c) An order permitting or directing further questioning of the Plaintiff, JA;

d) An order establishing a date by which the Plaintiff shall provide to counsel for the Defendant all expert reports upon which she intends to rely at trial;

e) An order directing that JA submit to further medical examinations by health care professionals of the Defendant ’ s choice pursuant to the Alberta Rules of Court . [ 2 ] The matter was heard by me on December 21, 2011. At the hearing of this application, Counsel for the Defendant advanced arguments relative to her request for an adjournment of the trial and for leave to amend her Statement of Defence. While some argument was also advanced relative to the request for an order permitting or directing further questioning of the Plaintiff, this was effectively abandoned during the course of argument.

At the conclusion of oral argument, I reserved my decision to further consider the matters raised. [ 3 ] For the reasons which follow, the application for an adjournment of the trial is dismissed. Leave is, however, granted to the Defendant to amend her Statement of Defence in the manner proposed. In my view, given the manner in which this application was pursued, it is not necessary to deal with any of the other forms of relief sought by the Defendant. Procedural History [ 4 ] The cause of action relative to this matter is alleged to have arisen in September, 2003.

The Statement of Claim was filed on February 22, 2005, and the Statement of Defence was filed on May 30, 2005. On September 3, 2010, Browne J. severed the issue of liability from the issue of quantum of damages and directed that the liability portion of the trial be heard in a 7-day liability trial that was initially set to proceed commencing on June 20, 2011. The damages portion of the trial was subsequently set to be heard February 27 to March 16, 2012.

On June 3, 2011, I granted an order (on the consent of both parties) adjourning both the liability and damages portions of the trial, and directed that the trial was to be completed prior to the end of June, 2012. A new trial date was subsequently scheduled for May 22 to June 28, 2012. [ 5 ] On December 14, 2011, Counsel for the Defendant filed this application seeking a further adjournment of the trial and other relief. Application for a Further Adjournment of the Trial [ 6 ] In support of the application for a further adjournment of the trial, the Defendant filed an affidavit sworn December 15, 2011.

In her affidavit, the Defendant states a total of 8 different expert reports (described as “new” reports) were received from Plaintiff’s counsel between September 21, 2011 and November 21, 2011. These reports are summarized in a chart set forth at para. 6 of her affidavit, the contents of which are reproduced below for ease of reference. Date of Report Date provided to my counsel Expert Subject Page count July 14, 2011 September 21, 2011 Dr. Le Melledo Psychiatry 2

August 16, 2011 August 24, 2011 Dr. Dalby Neuropsychology 46 August 31, 2011 November 16, 2011 Dr. DiPersio Rehabilitation Medicine 8 September 29, 2011 September 30, 2011 Dr. Ancill Psychiatry 35 September 30, 2011 October 17, 2011 Dr. McKenzie Orthopaedic 8 October 11, 2011 November 21, 2011 Sylvia Wilson Disability Analyst 36 October 31, 2011 November 21, 2011 David Atkinson Psychologist 57 November 30, 2011 November 21, 2011 Dr.

Lewis Neuro- Ophthalmology 2 [ 7 ] The Defendant deposes (at para. 16) that “...due to the number of specialists who have already assessed or treated JA and time restrictions upon the remaining suitably qualified experts, it will likely be several months before the necessary assessments can take place and expert reports prepared.” She then goes on to detail the efforts that have been made by her counsel to retain defence experts. [ 8 ] In oral argument, counsel for the Defendant also advanced the argument that some of the “new” reports contain new information which change the complexion of the case.

He also confirmed that the sole outstanding report from the Plaintiff is the economist’s report. (Counsel for the Plaintiff advised the court in oral submissions that this report was, in fact, due to be received that very day.) [ 9 ] In response, the Plaintiff provides a series of letters as appendices to her affidavit detailing the steps taken by Plaintiff’s counsel to keep counsel for the Defendant apprised of the status of the various experts’ reports, and the subject matter of same, proposed for trial.

For example, Plaintiff’s counsel wrote to counsel for the Defendant on June 13, 2011, detailing the scheduling of expert assessments relative to 6 of the 8 experts referred to in the chart reproduced above. Four of these plaintiff experts had scheduled assessment dates during the summer of 2011. An ophthalmology follow-up with Dr. Lewis and an orthopaedic follow-up with Dr. A.H. McKenzie were then the subject of scheduling efforts. Finally, the June 13 th letter indicates that efforts are then underway to also arrange appointments with an economist and a psychiatrist or pain specialist.

Plaintiff’s counsel provided a status update on August 12, 2011. By that point in time, only the identification of a plaintiff economist remained outstanding. Further follow-up reports were provided on August 18, 2011, August 24, 2011, and October 17, 2011. [ 10 ] Significantly, in my view, Plaintiff counsel’s correspondence of August 12, 2011 specifically inquires as to the status of any rebuttal reports to be prepared by defence experts. Specifically, the letter states: Should we expect to hear from you with respect to any Defence medicals or other rebuttal assessments?

Obviously, we are concerned about the timeframe in light of the scheduled mediation on December 17, 2011. In anticipation of possible complications related to rebuttal assessments, we contacted Frank Gomberg’s office and were informed that the next available date for a mediation would be Saturday, March 3, 2012. We only put this information on the table so that you are informed of this alternative, not to suggest in any way that we are seeking a postponement. That said, our primary concern is that the mediation is not in any way hijacked by the suggestion of inequality of arms.

Similarly, in their letter of August 18, 2011, Plaintiff’s counsel states: “ We gave you notice of all of our assessments back in June so that you would have sufficient time to

schedule yours. And we trust you will agree it is in our mutual interest to move this matter towards a conclusion without unnecessary further delay .” This sentiment is repeated in Plaintiff counsel’s letter of August 24, 2011, wherein he

states “... we trust you will have a reasonable opportunity to review, understand and if necessary, rebut the opinions of our experts .” Finally, on October 17, 2011, Plaintiff’s counsel again wrote to counsel for the Defendant on the matter of defence expert reports, stating: We are on track to provide you with all of our expert assessments in October, 2011, earlier than anticipated - with the one likely exception of the Economica [sic] report possibly running into November.

Given our timelines, with the scheduled mediation for March 3, 2011, followed closely thereafter by the trial, we are concerned that we have not heard from you with respect to scheduling any defence medicals or other rebuttal assessments prior to the mediation. ( Emphasis added) [ 11 ] Save for the Defendant’s affidavit sworn December 15, 2011, there is no evidence before me as to any response provided to Plaintiff’s counsel regarding the retainer of defence experts and the scheduling of any required examinations. [ 12 ] During oral argument, counsel for the Plaintiff took the position that the Defence has known for many years the types of expert evidence that would be required in this matter.

Further, he contends that the Defendant has known since at least June, 2011 of the Plaintiff’s drug use. Counsel for the Plaintiff rejects the contention by the Defence that the more recent expert reports provided to the Defendant contain new information which change the complexion of the litigation in any fundamental way. Rather, counsel for the Plaintiff contends that the Defence has not diligently pursued the identification and retainer of defence experts.

The Law [ 13 ] The Defendant provided me with two decisions of this Court relating to applications for adjournments in circumstances similar to the one at hand. Adjournments were granted in both instances. In Burkosky v. Grey Goose Corp . [1999] A.J. No. 266 , Veit J. offered the following statements of principle governing adjournments (at para. 17 & 18): There is not a mere issue of procedure: the icon of justice is the weighing of a balance. Where one of the parties cannot put any weight into their side of the balance because they are deprived of evidence, the fundamental notion of balance disappears.

As between a financial hardship on the one hand, and an unfair trial on the other, the court must ensure that its process is fair. An adjournment is inconvenient to the plaintiffs but the absence of an adjournment would cause the defendants prejudice. If the plaintiffs are successful at trial, they will be compensated for the delay because the defendants will have to pay interest on the award. However, if the trial is allowed to go ahead now, there is no way that the defendants can be compensated for the prejudice they will suffer. [ 14 ] In Northland Forest Products Ltd. v.

Wood Buffalo (Regional Municipality) [2002] ABQB 437, Clarke J. of this Court, after citing with approval the above passage in Burkosky, supra , stated as follows (at para. 13): The principles that I take from all of these cases that were cited to me is that I must balance the prejudice that will be suffered by each of the three parties if an adjournment is granted and decide where the weight of prejudice lies to determine if an adjournment is appropriate. [ 15 ] Counsel for the Plaintiff also provided me with 2 decisions from British Columbia, both involving refusals to grant an adjournment sought by a defendant claiming insufficient time to retain experts to rebut the content of expert reports to be relied upon by the plaintiff.

In Pastula v. North Cowichan (District) [2005] BCSC 1605, Macaulay J. explained the principle as follows (at para. 5): The granting of an adjournment is discretionary. It requires me to balance the interests of both parties to achieve the fairest possible result. This application requires a balancing of the obvious prejudice to the plaintiffs attributable to further delay with any prejudicial

effect of requiring NC to proceed with the trial in January 2006, no less than two months away. A defendant is entitled to the opportunity to prepare for and conduct the trial. That entitlement depends in part on the plaintiffs fulfilling their obligations to disclose documents, answer questions on discovery and give notice of expert evidence. Any prejudice to the defence in the present case must arise, not from the defendant’s own dilatoriness, but from the plaintiffs’ failure to comply with disclosure or notice obligations. [ 16 ] The other decision citied by the Plaintiff is a decision of Master I.W.

Caldwell in Warkentin v. Riggs [2010] BCSC 272. In that instance, not unlike the case at bar, the defendant sought an adjournment of the trial on the basis that the plaintiff’s claim had materially changed from the claim set forth in the pleadings. In particular, the defendant in that instance cited a medical report containing a diagnosis of injuries that were alleged to have not been disclosed in the pleadings. The defendant went on to say that it was unable to muster evidence to oppose these alleged new claims within the time remaining prior to trial.

In dismissing the adjournment application, Master Caldwell stated (at para. 9): No evidence as to the extent of additional efforts made or experts canvassed is provided. The time lines dictated by the Rules require diligence in the pursuit of rebuttal evidence; this may require a substantial expansion of the pool of experts who are consulted and utilized by both plaintiff’s and defence Bar. [ 17 ] The new Alberta Rules of Court , unlike the previous Rules , are silent on the matter of the actual timing of the exchange of experts’ reports.

Analysis [ 18 ] In my view, the Defence’s need for expert witnesses to review and assess the Plaintiff’s alleged injuries (and, if necessary, to rebut the expert reports relied upon by the Plaintiff) has been apparent from the outset of this action.

While the precise conclusions to be reviewed and potentially challenged did not become known to the Defendant until she was actually in receipt of the expert reports obtained by the Plaintiff, the general areas of expertise to which the Defendant would need to resort has been known for some time. [ 19 ] At this point in time, the Defendant’s concerns regarding the identification and retainer of expert witnesses to review and possibly rebut the findings and conclusions of the Plaintiff’s experts is, at best, somewhat speculative.

The evidence before me suggests that the Defendant has had some difficulty retaining particular experts, namely, Dr. Flaro, Dr. Kukami, and Dr. Frenzel. Scheduling time with Dr. Berendt (vocational assessment) also appears to be difficult given the current timelines associated with the trial of this action. Finally, the Defendant refers to Dr. DiPersio’s conflict in that he is already acting for the Plaintiff. The affidavit is, however, silent in terms of when these scheduling and other problems relating to the retainer of experts first came to the attention of the Defendant.

Moreover, the affidavit says nothing to suggest that these are the only experts who are potentially able to assist the Defendant. Given that the date scheduled for the resumption of the trial is some 5 months away, I am not prepared to conclude at this time that the Defendant’s challenges to date in retaining experts necessitates the further adjournment of this matter.

At no point does the Defendant state that she will be unable to properly defend this action as a result of her inability to present critical expert evidence. [ 20 ] I accept to some limited extent that the Defendant encountered some difficulty by virtue of the fact that the Plaintiff has relied on one expert witnesses that the Defendant was contemplating using herself. However, the evidence before me is very thin in terms of identifying the steps taken by the Defendant to overcome this specific difficulty.

Nowhere does the Defendant state that she has diligently attempted to retain someone possessed with the same expertise as Dr. DiPersio and that she has not been successful. [ 21 ] I do not believe that the Defendant has pursued this matter with appropriate diligence.

Rather than proactively seeking out experts who could be available as and when the reports from Plaintiff experts were received, the Defendant seems to have simply waited until the reports were received before taking steps to secure experts of her own. [ 22 ] As previously stated, the Plaintiff opposes this application for a further adjournment of the trial. In oral submissions, Plaintiff’s counsel contended that a further delay of the trial of this action would adversely impact on the psychological well-being of the Plaintiff.

He also indicated that the cost of maintaining the Plaintiff at a Kelowna rehabilitation facility is $1,700 per month and that this recurring expense is not sustainable by the Plaintiff’s family.

[ 23 ] At para. 3 of her affidavit, the Plaintiff’s Mother (and next friend), TA, states as follows: JA has found the litigation process to be extremely stressful, particularly during questioning and other encounters with opposing counsel. After previous such occasions, she has spiralled into depression, anxiety and temporary drug abuse. She and I both fear that undergoing further questioning will have the same effect.

JA understands that she will need to testify at trial, but she is very despondent about the possibility of the trial being adjourned and the litigation process being once again open-ended. [ 24 ] Balancing the interests of the two parties, I am not prepared to accede to the Defendant’s request for an adjournment at this time. I would reiterate my advice to counsel for the Defendant on December 21, 2011. As such, counsel were advised that they should not “down tools” awaiting the decision of the court on this application.

Rather, I advised counsel to press on with all due haste to try and identify and secure alternative experts to assist the Defendant in the defence of this action. Amendment of the Statement of Defence [ 25 ] The Defendant seeks to amend her Statement of Defence as follows:

a) Para. 2 - Delete the words “whereupon she was hit by the vehicle operated by the Defendant” and replace same with “leaving the Defendant no time to avoid striking the Plaintiff.”

b) Para. 4 - Delete the words “the preceding paragraph” and replace same with “paragraph 3.”

c) Para. 4 - Deleting all of para. 4(

g) and adding a new para. 4(

j) as follows: “Running onto the roadway at night, in dark clothing while failing to engage available crosswalk lights.”

d) Para. 5 - Deleting the word “states” and replacing it with “admits.”

e) Para. 5 - Deleting the words “did not suffer any injuries, loss or damage as alleged, or at all” and replacing with “suffered injuries, loss and damages as a result of the accident but states that the Plaintiff recovered from those injuries shortly after the accident occurred.”

f) Para. 6 - Replacing the opening portion with the following: “The Defendant further states that any of the Plaintiff’s injuries, loss and damage that persist are as a result of events and conditions unrelated to the motor vehicle accident of September 26, 2003, particulars of which include:”

g) Para. 6(a) - adding the words “including psychological conditions.”

h) Para. 6(b) - adding the words “including psychological conditions” after the words “Injuries and conditions,” and also adding at the end of para. 6(

b) the words “including, but not limited to: (

b) Injuries and conditions, including psychological conditions, suffered after September 26, 2003 but which are not related to the accident in question including, but not limited to: (

i) alcoholism;

(ii) drug addiction; (iii) cutting herself; (iv) running away from home and living on the streets; (

v) ADHD; (vi) Agoraphobia; (vii) Major Depressive Disorder; (viii) Social Anxiety Disorder; (ix) Anxiety Disorder; (

x) Bi Polar Disorder; (xi) Schizophrenia;

c) Psychosocial factors, including factors prevalent within the family home including, but not limited to: (

i) access to, and use of, illicit narcotics, including crack cocaine, supplied by a family member living in the family home of which the Plaintiff availed herself at age 12 and beyond; (ii) marital discord between her parents manifested by alcohol-fueled arguments; (iii) threats of harm made towards the Plaintiff by her father when he was impaired by alcohol; (iv) being left alone at home as a child while her parents were working or otherwise engaged outside the home; (

v) a generally dysfunctional family environment that among other things, has led to the Plaintiff’s sibling being addicted to drugs and hospitalized in a mental health facility for a lengthy period of time as an inpatient; (vi) a history of depression on both sides of the family including in both parents;

i) Para. 8 - Adding a new para. 8 which would read: “The Defendant prays that this action be dismissed with costs.” Legislation [ 26 ] Rule 3.62(1) of the Alberta Rules of Court is the new general provision governing amendments to pleadings: 3.62(1) A party may amend the party’s pleading, including an amendment to add, remove, substitute or correct the name of a party, as follows:

a) before pleadings close, any number of times without the Court’s permission;

b) after pleadings close, (

i) for the addition, removal, substitution or correction of the name of a party, with the Court’s prior permission in accordance with Rule 3.74, or (ii) for any other amendment, with the Court’s prior permission in accordance with Rule 3.65;

c) despite clauses (

a) and (b), whether or not pleadings have closed, with the agreement of the parties filed with the Court. [ 27 ] Here, there is no agreement between the parties regarding the requested amendment of the Statement of Defence and the pleadings have closed. Unfortunately, Rule 3.65 does not provide much assistance as to when amendments not related to adding parties should be granted. However, as Poelman J. noted in Manson Insulation Products Ltd. v.

Crossroads C & I Distributors , [2011] ABQB 51, (at para. 23): The most analogous former provision is rule 132, which stated as follows: The court may at any stage of the proceedings allow any party to alter or amend his pleadings or other proceedings in such manner and on such terms as may be necessary for the purpose of determining the real question in issue between the parties. The reference to “purpose of determining the real question in issue between the parties” does not appear in rule 3.65. However, rule 1.2(2)(

a) includes that purpose in the overall purpose and intention of the new Alberta Rules of Court . Thus, rule 3.65 cannot be seen as a change from the approach taken by the courts under the former rule 132. [ 28 ] The power of the Court to amend pleadings under Rule 3.65 was also considered by Macleod J. in Ignition Energy Ltd. v. Direct Energy Marketing Ltd. [2011] ABQB 90, wherein the Court stated (at para. 10): The Court’s discretion to amend pleadings recognizes the importance of accurate pleadings.

Pleadings inform the other side as to the case being put forth against them and the Court is bound to make a decision based on what is pled before it: see Waquan v. Canada , 2002 ABCA 110 , 303 A.R. 43 at para. 85 ; see also Newel Post Developments Ltd. v. 1402801 Alberta Ltd. , 2010 ABQB 660 . As such, the threshold required to allow an amendment is very low. As stated in Balm v. 3512061 Canada Ltd. , 2003 ABCA 98 , 327

A.R. 149 at para. 43, an “amendment should be allowed, no matter how careless or late, unless there is prejudice to the other side”. Absent prejudice, only a “clearly and obviously invalid” amendment should be rejected: Oregon Jack Creek Indian Band v. CanadianNational Railway Co. (Motion), (SCC), [1990] 1 S.C.R. 117 at p. 118. Even a doubtful plea should be allowed, so longas it is at least arguable: Balm at para. 12. [29] In Dow Chemical Canada Inc. v.

Nova Chemicals Corp. [2010] ABQB 524, Chief Justice Wittmann, dealing with Rule 132,articulated the following principles: Generally, any pleading can be amended no matter how careless or late is the party seeking to amend: Balm v. 3512061 Canada Ltd.,2003 ABCA 98, 327 A.R. 149 at para. 43. This is referred to in Balm as the “classic rule”. The classic rule is subject to four major exceptions: Canadian Deposit Insurance Corp. v. Canadian Commercial Bank, 2000 ABQB440, 269 A.R. 49 at para. 11; Foda v. Capital Health Region, 2007 ABCA 207 at para. 10; see also C.H.S. v.

Alberta (Director of ChildWelfare), 2006, ABQB 528, 403 A.R. 103 at para. 11, aff’d 2006 ABCA 355, 401 A.R. 215. Those exceptions are as follows: (1) the amendment would cause serious prejudice to the opposing party, not compensable in costs; (2) the amendment requested is “hopeless” (an amendment that, if were in the original pleadings, would have been struck); (3) unless permitted by statute, the amendment seeks to add a new party or a new cause of action after the expiry of a limitation period;and (4) there is an element of bad faith associated with the failure to plead the amendment in the first instance.

Therefore, if no exception applies, the pleadings can generally be amended. [30] In my view, none of the exceptions articulated by Chief Justice Wittmann apply in this case. Moreover, the Plaintiff does notvigorously oppose the amendment of the Statement of Defence. While the Plaintiff does not explicitly consent to the amendment, shesays two things. First, that the amendment was not necessary as being already covered by the general statements in the Statement ofDefence. Second, she says that the real purpose of the amendment is to tarnish the Plaintiff in the eyes of the trial judge.

In my view,there is simply no merit to either of these arguments and I am prepared to allow the Defendant to amend her Statement of Defence in themanner requested. Conclusion [31] The application to adjourn the trial is dismissed. The application to amend the Statement of Defence in the manner requestedis allowed. In view of the fact that this application was largely focused on the Defendant’s application for an adjournment, and giventhat this issue was resolved in the Plaintiff’s favour, the Plaintiff is entitled to her costs relative to this application. Heard on the 21st day of December, 2011.

Dated at the City of Edmonton, Alberta, this 14th day of January, 2012.

M. David Gates J.C.Q.B.A. Appearances: David A. Huculak for the Plaintiff Robert D. Muller, Maurice C. Dransfeld for the Defendant