Brough v Yipp, 2014 ABQB 777

Court of Queen ’ s Bench of Alberta Citation: Brough v Yipp, 2014 ABQB 777 Date: 201412016 Docket: 0901 01858 Registry: Calgary Between: Jonathan Cooper Brough, Susan Ann Brough, and Jonathan Robin Brough Plaintiffs / Respondents - and - Bryan Yipp, Kathleen Bell, Andrew Kirkpatrick, Ann Susan Kirby, Paul Maceachern, Christopher J. Doig, Lannette Prediger, Mary Elizabeth Macrea, Shamir Patel and James N.

Scott; and John Doc Doctors 3 Through 5; and Alberta Health Services, formerly known as the Calgary Regional Health Authority, carrying on business under the name and style of the Foothills Provincial General Hospital and the Foothills Medical Centre Defendants / Applicants _______________________________________________________ Memorandum of Decision of J.B. Hanebury , Master in Chambers

_______________________________________________________ [ 1 ] This application raises the question of the interplay between s. 6 and s. 3 of the Limitations Act , R.S.A. 2000, c. L-12. Dr. Patel argues that s. 6 , which allows a new defendant to be added outside the limitation period when certain criteria are met, is merely procedural. He submits that it does not interfere with a defendant’s substantive defence under s. 3 that the claim against him is statute- barred. Therefore Dr. Patel applies to summarily dismiss the claim against him on the basis that it is barred by s. 3 of the Act .

Facts [ 2 ] In this case the Statement of Claim was amended to add Dr. Patel to a medical malpractice action. His name replaced that of a “John Doe Doctor”. Counsel for the doctors already named and the Calgary Regional Health Authority provided letters to counsel for the plaintiff advising that they neither consented to, nor objected to, the amendment. The order was granted, adding Dr. Patel as a defendant and particularizing the claim against him. It appears Dr. Patel was not served with notice of the application. He has not applied to set aside the order, nor has he appealed it.

In any event, he subsequently filed a statement of defence. One of his defences is that the action was not commenced within the requisite time period prescribed by law and he relied on the Act . He then brought this application for

summary dismissal on that basis. Analysis [ 3 ] Dr. Patel argues that the requirements found in s. 3 of the Act were all met and the limitation clock started running more than two years prior to the amendment being allowed. As a result, the claim against him is out of time and should be dismissed.

Section 6 of the Act , he argues, cannot save the claim. It is merely procedural and sets out the requirements that must be met to allow a claim to be amended. It does not affect the substantive defences found in s. 3 of the Act . [ 4 ] He says that it is simply illogical that he loses the substantive rights he has under s. 3 if he is added into an existing claim. These are rights that he would have had if he were sued initially. He points out that all of the case law in relation to s. 6 deals only with amending a claim, which is a procedural issue, and no case relies on s. 6 to remove the substantive defence available under s. 3. [ 5 ]

Section 6 says: Claims added to a proceeding 6(1) Notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced, either through a new pleading or an amendment to pleadings, the defendant is not entitled to immunity from liability in respect of the added claim if the requirements of subsection (2), (3) or (4) are satisfied. [ 6 ] The relevant subsection in this case is ss. (4), which states that: when the added claim adds or substitutes a defendant, or changes the capacity in which a defendant is sued, the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding, and the defendant must have received, within the limitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced in maintaining a defence to it on the merits. [ 7 ] Subsection (5) allocates the burden of proof; the claimant is responsible for proving the first requirement, that the added claim is related.

The defendant is responsible for the second requirement, that he or she failed to receive sufficient, timely notice of the added claim. [ 8 ] Dr. Patel relies on four cases in support of this

interpretation of the interplay between s. 6 and s. 3 of the Act : 422252 Alberta Ltd. v. Messenger , 2013 ABQB 399 (Master), Singh v. Gill , 2010 ABQB 58 , (Master), Kydd v. Abolarin , 2011 ABQB 690 , and Stout (Estate of) v. Golinowski (Estate of) , 2002 ABCA 49 [ 9 ] The first three decisions are distinguishable. 422252 Alberta Ltd. v. Messenger involved a consideration of whether s. 6 of the Act could save an added claim that was outside of the ultimate 10 year limitation period. That is not the situation before me and this case is not of assistance. [ 10 ] In Singh v.

Gill , the Master allowed an amendment to add Mr. Gill, a self-represented party, to an action and did not hear from Mr. Gill. He stated that Mr. Gill could later apply for

summary judgment to strike the claim on the limitations argument or any other defence he had. The Court left the question of limitations extant. [ 11 ] The issue in Kydd v. Abolarin was whether a claim could be amended to include a doctor who had died before the amendments were sought. The concern was whether the deceased doctor knew of the added claim within the time limits found in s. 6. The Court determined that it was impossible to decide this question on the facts before it.

As in Singh , the Court allowed the amendments and left the question of limitations to be dealt with at trial. [ 12 ] This is an approach that is open to the Court, as is discussed in Dow Chemical Canada Inc. v. Nova Chemicals Corporation , 2010 ABQB 524 , a decision referred to in Kydd . In Dow , Wittmann C.J. said at para. 64, that when an amendment is sought and there is a limitations issue the Court has several choices. It can: 1. Determine the limitation period has not expired and allow the amendment; 2.

Rule that limitation period has expired and therefore consider s. 6 of the Limitations Act which provides for when an amendment can be made beyond the limitation period; and

3. Find that because of uncertainty in the evidence, the amendments should be allowed subject to the determination of the limitation issue at trial... [ 13 ] Wittmann C.J. added that there is a variation of the last option. The court can move immediately to s. 6 of the Act to determine whether it saves a claim otherwise barred by the statute. That was the option he chose to pursue. [ 14 ] He said at para. 64: As indicated above, some evidence was put before me to suggest that s. 3 of the Limitations Act bars the claims.

Having found that further evidence is necessary to determine the appropriate limitation dates of the new claims, I will assume that the new claims were not brought within the 2 year limitation period and consider whether the new claims are saved by s. 6(2) (

b) of the Limitations Act . [emphasis added] [ 15 ] The central issue in Stout (Estate of) was whether a statement of claim could be amended after the applicable limitation period to substitute the administrator of the estate for the administrator ad litem . The argument was that the action was a nullity and incapable of amendment as it was instituted by the administrator ad litem. The subsidiary question was, if the action was capable of amendment, should it be amended? [ 16 ] The Court of Appeal held that the claim was capable of amendment.

It noted that the issue came squarely within s. 6 of the Act as there was an existing claim, and the amendment involved the substitution of one plaintiff for another. [ 17 ] The Court pointed out in para. 96 that the new Limitations Act [the present Act] sets up situations where it would not be unjust to a defendant to remove the limitations defence [emphasis added].

It referenced The Report for Discussion of the Law Reform Commission of Alberta on Limitations , Report No. 55, Dec. 1989, pages 1-2. [ 18 ] The passage referenced states: Special provisions modify the operation of the basic limitation periods in certain circumstances. For example, both the discovery limitation period and the ultimate limitation period are suspended during any period of time that the claimant was under disability....

Special provisions also apply to claims added to a proceeding [emphasis added]... [ 19 ] The Commission expanded on this statement on pages 41 – 42: When a proceeding has been started by a timely claim, the parties will often wish to add further claims which are subject to a limitations defence. If the added claims are related to the conduct, transaction or events described in the original pleading in the proceeding, it will often be desirable, for reasons of justice and efficiency, to have them tried in a single proceeding with the original claims.

The new Alberta Act will deprive a defendant of a limitations defence he would normally have to an added claim [emphasis added]… [ 20 ] As I read this case and the material it references, Stout (Estate of) stands for the opposite proposition to that proposed by Dr. Patel.

The Court acknowledges the decision made by the Legislature, after the discussion and recommendations of the Law Reform Commission, that in certain situations a defence limitation otherwise available will become unavailable to a defendant. [ 21 ] In my view, the case law and the statute are clear that if an added claim meets the criteria found in the relevant subsection of s. 6, the ability to rely on a missed limitation under s. 3 of the Act is lost.

Section 6(1) expressly states that “ the defendant is not entitled to immunity from liability in respect of the added claim if the requirements of subsection (2), (3) or (4) are satisfied”. [ 22 ] As earlier noted, the relevant subsection in this case provides that the added claim must be related to the conduct, transaction or events described in the original pleading and the defendant must have received, within the limitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced in maintaining a defence to it on the merits. [ 23 ] There is no evidence or argument by Dr.

Patel that the requirements of s. 6(4)(

a) and (

b) have not been met. Dr. Patel’s entire argument was based on s. 3 of the Act barring any claim against him. [ 24 ] In any event, as tacitly acknowledged by Dr. Patel, it is difficult to argue that the added claim is not “related to” the conduct, transaction or events described in the original pleading”. The phrase “related to” has been held to have a very broad meaning: McDonnell v. Csaki , 2014 ABQB 452 , relying on Calgary Mack Sales Ltd. v. Shah , 2005 ABCA 304 . In R. v.

Canadian National Railway , 2001 ABQB 984 , the Court held that the test for “related to” was met as all of the claims arose from the same fire. See as well: Canadian Natural Resources Ltd. v. Arcelormittal Tubular Products Roman S.A ., 2012 ABQB 679 , paras. 408-414 . [ 25 ] In this case all of the claims arose from the treatment of the plaintiff’s illness by hospital doctors and staff. It is certainly arguable that the added claim meets this requirement. [ 26 ] The second requirement is whether Dr. Patel had sufficient timely knowledge of the added claim. The burden under the Act is on Dr.

Patel to show this requirement has been met. He has not provided any evidence on point. [ 27 ] In Canadian National Railway , Slatter J. (as he then was) noted : … ss. 6(5)(

b) places on the defendant the burden of disproving the requisite knowledge [of the added claim]. In this case the Defendant has filed no evidence, and the Plaintiff is entitled to succeed. [ 28 ] With no evidence from Dr. Patel on this question, it appears that s. 6 may be applicable, defeating Dr. Patel’s defences found in s. 3 of the Act. Conclusion

[ 29 ] As this is a

summary dismissal application by Dr. Patel, the question before me is whether he has satisfied the Court that the added claim should be dismissed. As the evidence leads to the conclusion that the added claim may be allowable under s. 6 of the Act, Dr. Patel cannot obtain

summary dismissal based on s. 3 of the Act. [ 30 ] Dr. Patel’s application is dismissed. The respondents are entitled to their costs. Heard on the 10 th day of December, 2014. Dated at the City of Calgary, Alberta this 16 th day of December, 2014. J.B. Hanebury M.C.C.Q.B.A. Appearances: Karen O'Keeffe and Alyssa Duke Gowling Lafleur Henderson LLP for the Defendant / Applicant Shamir Patel M. Jane Rotnem Professional Coporation for the Plaintiffs / Respondents