Steinkrauss v Afridi, 2013 ABQB 179

Court of Queen ’ s Bench of Alberta Citation: Steinkrauss v Afridi, 2013 ABQB 179 Date: 20130320 Docket: 1003 05957 Registry: Edmonton Between: Jeff Steinkrauss and Her Majesty the Queen In Right of Alberta Plaintiffs/Respondents - and - Obaid Tahir Khan Afridi Defendant/Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction [ 1 ] This is an appeal from a Master ’ s decision granting the Plaintiffs (the Respondents on this appeal) leave to file an Amended Statement of Claim in a medical malpractice case. Background

[ 2 ] The Plaintiffs allege that the Defendant, Dr. Afridi (the Appellant on this appeal), failed to properly treat Deirdre Steinkrauss resulting in a delay in her breast cancer diagnosis until 2009, which led to her subsequent death on June 7, 2010. Ms. Steinkrauss is survived by her husband, the Plaintiff Jeff Steinkrauss, two minor children and her father. [ 3 ] The original Statement of Claim was filed on April 12, 2010, prior to Ms. Steinkrauss ’ death on June 7, 2010. She had not yet been examined for discovery. [ 4 ] The Amended Statement of Claim substitutes Jeff Steinkrauss for Ms. Steinkrauss.

It also adds an allegation that the Appellant made certain notations in his chart on Ms. Steinkrauss after she was diagnosed with breast cancer. It further alleges that the act of altering the charts merits punitive damages and solicitor-client costs. [ 5 ] Neither the Fatal Accidents Act , RSA 2000, c F-8 ( FAA ) nor the Survival of Actions Act , RSA 2000, c S-27 ( SAA ) is pled in the Amended Statement of Claim.

However, many of the heads of compensation and amounts correspond to amounts which may be claimed under the FAA . [ 6 ] The Defendant was examined for discovery on May 12, 2010 and was questioned regarding the accuracy and timing of his chart notes on Ms. Steinkrauss ’ file. [ 7 ] The Plaintiffs have obtained evidence from a hand-writing and ink-dating expert. The Defendant has obtained rebuttal expert opinion. [ 8 ] The Master allowed the amendment, holding that it appeared the Respondents were alleging a deliberate act that caused harm to Jeff Steinkrauss.

The Master held that the FAA does not exclude causes of action not expressly addressed therein, likening the pleading to a claim for nervous shock upon a husband witnessing his wife ’ s death in a fatal accident. He recognized that the estate cannot succeed for punitive damages due to s. 5 of the SAA . However, he was of the view that a survivor of the deceased can claim punitive damages if he has his own cause of action, and the pleading is sufficient to give rise to facts that would support such a cause of action. [ 9 ] The Amended Statement of Claim was filed on July 20, 2012, pursuant to the Master ’ s order.

Standard of Review [ 10 ] The appropriate standard of review on appeal from a Master to a judge, on all issues, is correctness: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 , 524 AR 382 . Rule 3.62 [ 11 ] Rule 3.62 of the Alberta Rules of Court provides in part: 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: ...(

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. Defendant ’ s Position [ 12 ] The Defendant objects to paragraphs 10(

a) and 19 of the statement of facts and the corresponding claims for relief,

f) and

g) under “ Remedy sought ” . He takes the position that the amendments in issue are hopeless as the issue of punitive damages on account of the alleged fraud is not a triable issue. He acknowledges that the issue of the timing of the chart notes will be relevant to credibility at trial, but submits that it is not required to be pled for that purpose. [ 13 ] The Defendant asserts that there is no allegation or suggestion within the Amended Statement of Claim that the alleged later chart notations had any causal link to the damages potentially arising under the FAA or the SAA . The Defendant notes that the estate is barred by s. 5(2) (

a) of the SAA from claiming punitive damages, and submits that the FAA creates an exclusively compensatory cause of action, thereby also precluding a claim for punitive damages under the FAA . The alleged fraud could not have had, nor is it alleged to have had, any causal effect on the death of Ms. Steinkrauss. Ms. Steinkrauss (now her estate) could possibly have been a victim, but the estate is precluded from collecting punitive damages. [ 14 ] Further, the Defendant argues that there is no allegation within the Amended Statement of Claim that the alleged fraud in any way caused damage to anyone.

No independent cause of action or separate actionable wrong has been pleaded. The Plaintiffs have not pled a duty of care or breach of contract or facts in support of a separate actionable wrong or independent cause of action, and punitive damages cannot be awarded “ at large ” .

Jeff Steinkrauss ’ affidavit and cross transcript do not mention any harm suffered as a result of the alleged fraud, nor that he himself was a victim of the alleged fraud. [ 15 ] The Defendant cites Clapperton Estate v Davey , 2009 ABQB 63 , 468 AR 81 , in which Manderscheid J. declined to allow amendments of fraudulent and negligent misrepresentation where the pleadings and evidence on the application did not support an independent cause of action on the part of the husband whose wife had died due to alleged medical negligence. [ 16 ] Finally, the Defendant asserts that if the Plaintiff Steinkrauss sought to amend to plead a separate cause of action, he would face a limitations issue.

Plaintiffs ’ Position [ 17 ] The Plaintiffs argue that the issue to be addressed is whether it is at least arguable that a claim for punitive damages is possibly available in a fatality claim. In other words, the Court must decide whether it is beyond doubt that a claim for punitive damages cannot succeed in this case. [ 18 ] The Plaintiffs further argue that the adjudication of whether punitive damages are available in this case will have little or no effect on the trial of the action.

They cite C ô t é J.A. in Balm v 3512061 Canada Ltd , 2003 ABCA 98 , 327 AR 149 : 14 ...disallowing an amendment whose legal validity is debatable but whose facts overlap parts not attacked, produces a real risk of injustice (if the new claim is actually open in law), but no real advantage (even if it is bad in law)... [ 19 ] The Plaintiffs acknowledge that the focus of punitive damages is not the effect of reprehensible conduct on a party but on punishing the wrongdoer and deterring similar behaviour in the future. The Plaintiffs argue that the alteration of the charts was done to

avoid legal liability in a claim which Dr. Afridi would reasonably anticipate would be brought by Mr. Steinkrauss or her family shouldshe die before trial. [20] The Plaintiffs submit that the FAA does not bare claims which are not specifically mentioned therein. There is no clearwording barring a claim for punitive damages as is the case in the SAA. [21] Further, the Plaintiffs argue that punitive damages can be awarded in the absence of an accompanying tort: Whiten v PilotInsurance Co, 2002 SCC 18, [2002] 1 SCR 595. [22] The Plaintiffs rely on Plester v Wawanesa, (ON CA), 213 OAC 241, 39 CCLI (4th) 44.

The OntarioCourt of Appeal in that decision determined that punitive damages were available under the Trustee Act, RSO 1990, c T.23: 38 Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts orinjuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceasedwould, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, ifdeath results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is notin derogation of any rights conferred by

Part V of the Family Law Act. [23] The Court in Plester held that as remedial legislation, the Trustee Act should be given a large and liberal

interpretation inorder to achieve its purpose, and the silence of the legislature should not be interpreted as an implicit exclusion of such claims, in light ofthe fact that other legislatures have expressly excluded them.

The Court also found that policy favoured permitting estates to recoverpunitive damages. [24] The Plaintiffs also cite Blacquiere's Estate v Canadian Motor Sales Corporation (1975), (PE SCTD), 10Nfld & PEIR 178, 17 APR 178 at para 29 (PEI SC) for the proposition that there are circumstances in which claims for exemplarydamages could be made in an action brought under the Fatal Accidents Act, even where they are excluded by the provisions of theSurvival of Actions Act.

Analysis [25] An amendment should generally be allowed unless: 1) it would cause serious prejudice to the opposing party, notcompensable in costs; 2) it is “hopeless” in the sense that it would have been struck if it were in the original pleadings; 3) it seeks to adda new party or a new cause of action after the expiry of a limitation period; or 4) there is an element of bad faith associated with thefailure to plead the amendment in the first instance: Dow Chemical Canada Inc v Nova Chemicals Corporation, 2010 ABQB 524 atpara 21, 495 AR 338. [26] A higher standard of evidence is required for amendments which include allegations of fraud: Mikisew Cree First Nation vCanada, 2002 ABCA 110 at para 61, 303 AR 43. [27] Survival actions by estates relate to the deceased’s loss before death, while fatal accident actions cover dependants’ loss afterdeath.

The SAA clearly provides in s. 5 that punitive damages are not recoverable by the estate. The FAA contains no such expressprovision. [28] In considering whether punitive damages are recoverable in relation to a claim under the FAA, it is helpful to consider theorigins of the FAA. [29] At common law, there was no right of action in tort for one’s own loss as a result of another’s death: Baker v Bolton (1808),1 Comp 493, 170 ER 1033 (KB). Lord Campbell’s Act changed this state of affairs in 1946 (An Act for Compensating the Families ofPersons Killed by Accidents, 1846, 9 & 10 Vict, c 93).

This was adopted in Canada (10 & 11 Vict, c 6 (1847)), and that statute was the

precursor of similar provincial and territorial legislation throughout Canada giving dependants a limited statutory right to sue. Damagesunder fatal accident statutes were held to extend only to pecuniary losses: Blake v Midland Ry (1852), 18 QB 93; St Lawrence & OttawaRy v Lett (1885), 1885 CanLII 7 (SCC), 11 SCR 422, Grant Trunk Ry v Jennings (1888), 13 App Cas 800 (PC), Sakaluk v Lepage, (SK CA), [1981] 2 WWR 597, 6 Sask R 249 (CA). [30] The Supreme Court in Vana v Tosta, (SCC), [1968] SCR 71, 66 DLR (2d) 97, held that loss of care andguidance is loss of a pecuniary nature.

The Supreme Court of Canada held in Ordon Estate v Grail, (SCC), [1998] 3SCR 437, [1998] SCJ No 84 that even where the legislature is silent (in that case in the maritime law context), damages may be claimedfor loss of guidance, care and companionship in relation to fatal accidents. [31] In Alberta, s. 8 of the FAA was enacted in 1979 to provide for damages for bereavement.

Section 8 expressly prescribes fixedsums representing damages for “grief and loss of the guidance, care and companionship”. The FAA does not expressly contemplatepayment of any “non-pecuniary damages”, except to the extent that “grief and loss of the guidance, care and companionship” may beclassified as non-pecuniary.

Despite the ruling in Vana v Tosta, courts are inconsistent in their characterization of these damages, oftenreferring to all of them as non-pecuniary. [32] Although the FAA is remedial legislation, its history suggests that the legislature’s intent was to limit the types of non-pecuniary damages available to claimants. (See generally the detailed account of the history of Alberta’s legislation to 1992 in theAlberta Law Reform Institute’s Non-pecuniary Damages in Wrongful Death Actions - A Review of

Section 8 of the Fatal Accidents Act,Report For Discussion No. 12 (June 1992)). [33] As Cromwell J.A. (as he then was) noted in MacLean v MacDonald, 2002 NSCA 30, [2002] NSJ No 76 at para 29, suchlegislation does not do away entirely with the common law rule barring wrongful death actions, but rather it modifies the rule in specificways. [34] In my view, the pecuniary/non-pecuniary distinction is not overly helpful in addressing the issue before this Court.

A morehelpful distinction is the distinction between compensatory and non-compensatory losses. [35] In Lord (Litigation guardian of) v Downer (1999), (ON CA), 179 DLR (4th) 430, 125 OAC 168 (CA),Sharpe J.A. for the Court considered similar legislation and determined that the intention was to provide for recovery of compensatorylosses: 7 ...While s. 61(2)(

e) allows for recovery of certain specified non-pecuniary damages, those damages are still compensatory in nature.In my view, the statutory language is fatal to any claim for punitive or exemplary damages. Punitive damages are non-compensatory andnon-pecuniary in nature...While it may be that the circumstances pleaded could call for the censure of the court, the issue is whether thelegal entitlement asserted by the plaintiffs can embrace such a claim.

As the plaintiffs assert a purely statutory cause of action whichlimits recovery to pecuniary losses and certain specified non-pecuniary compensatory losses, I fail to see any basis for allowing theplaintiffs to claim punitive or exemplary damages which are plainly non-compensatory in nature. [36] In Clapperton Estate v Davey, as mentioned above, Manderscheid J. declined to allow amendments of fraudulent andnegligent misrepresentation.

The Plaintiffs submit that Clapperton Estate is distinguishable in that the applicants in that case did notadvance a claim under the FAA and it was concluded that there was a lack of evidentiary support for most of the amendments sought. Inmy view, the ruling in Clapperton Estate does support the Defendant’s position. [37] The Plaintiffs also rely on Plester v Wawanesa. However, the Ontario Court of Appeal in that case was considering whetherpunitive damages were available under provisions of the Ontario’s Trustee Act, which correspond to our SAA.

The Court held that thesilence of the legislature did not equate to an implicit exclusion of such claims, noting that other legislatures (such as Alberta in the SAA)have expressly excluded them. The Court found that policy favoured permitting estates to recover punitive damages, but did not addressdependants’ claims under fatal accidents legislation. [38] The Plaintiffs also cite Blacquiere's Estate for the proposition that there are circumstances in which claims for exemplary

damages could be made in an action brought under Alberta ’ s FAA , even where they are excluded by the provisions of the SAA . However, the Court ’ s comments in this regard are obiter , given that it would have declined to award exemplary damages even if the plaintiff ’ s allegations had been established. [ 39 ] The Plaintiffs cite Whiten v Pilot Insurance Co , arguing that punitive damages can be awarded in the absence of a separate accompanying tort. However, if one can draw parallels between the facts in Whiten and those alleged in this case, logically such a punitive damages claim would be that of Ms.

Steinkrauss, which is now barred by the SAA . [ 40 ] It is true that s. 3(1) of the FAA provides that the court may give to the persons designated therein “ those damages that the court considers appropriate to the injury resulting from the death ” . The Plaintiffs note that dependency claims have been permitted under the FAA .

I also acknowledge that at least one commentator has suggested that exemplary damages should be permissible in fatal accident claims on the reasoning that if the defendant merits punishment, such damages should be available regardless of the form of action: KD Cooper-Stephenson, Personal Injury Damages in Canada , 2nd ed (Toronto: Carswell, 1996) at 640. [ 41 ] However, the key in my view is that the damages under the FAA must be “ appropriate to an injury resulting from the death ” , not injury resulting from the act that caused the death. The legislature has made this policy choice.

These damages are, therefore, distinct from the damages which the deceased would have been entitled to had she survived.

The latter are claimed by the estate under the SAA . [ 42 ] It has been noted that a curious inconsistency would arise if dependants were entitled to claim punitive damages under fatal accidents legislation in relation to conduct affecting the deceased, where the estate itself is barred from pursuing such damages: Rowe v Brown , 2008 NSSC 13 , 261 NSR (2d) 332 . [ 43 ] Despite the Plaintiffs ’ able submissions to the contrary, in my view it is not arguable that this claim for punitive damages is possibly available in the fatality claim.

Assuming for the sake of argument that the Respondents were successful in establishing that fraudulent changes to the chart were made by the Appellant to avoid liability, it is simply not arguable based on the pleadings before the Court, as amended, that any damages resulting from any change to the chart are “ appropriate to an injury resulting from the death ” .

An action under the FAA is available where the death of a person has been caused by a wrongful act, but the damages are awarded for the injury to the claimants resulting from the death. [ 44 ] I further find that the Amended Statement of Claim does not support an independent cause of action in relation to the alleged change to the charts accruing to the benefit of Jeff Steinkrauss. [ 45 ] This does not lead to the conclusion, however, that the allegations regarding the changing of the chart must be struck. The Plaintiffs have alleged certain facts. There is some expert evidence in support of the allegations.

The alleged facts are clearly relevant to the Appellant ’ s credibility. The status and integrity of the chart may also be important with respect to whether the Appellant met the standard of care. Furthermore, depending on how the evidence plays out in this matter, it may be at least arguable that such changes to the chart would be relevant to and supportive of the claim for solicitor-client costs. It is certainly prudent to alert one ’ s opponent that such facts are alleged. [ 46 ] Therefore, I find that it is appropriate to strike only that portion of the prayer for relief claiming punitive damages.

Conclusion [ 47 ] The claim for punitive damages in paragraph (

f) is struck from the prayer for relief in the Amended Statement of Claim. The appeal from the decision of the Master is allowed to that extent. Costs [ 48 ] Costs will be in the cause.

Heard on the 15 th day of January, 2013. Dated at the City of Edmonton, Alberta this 20 th day of March, 2013 . M. David. Gates J.C.Q.B.A. Appearances: Joseph V. Miller, Q.C. Weir Bowen LLP for the Plaintiffs/respondents William B. Hembroff Bennett Jones LLP for the Defendant/appellant