Dr. Anny Sauvageau Plaintiff - v. -, 2017 ABQB 448

Court of Queen’s Bench of Alberta Citation: Sauvageau v Alberta ( Justice and Solicitor General), 2017 ABQB 448 Date: 20170718 Docket: 1503 01900 Registry: Edmonton Between: Dr. Anny Sauvageau Plaintiff - and - Her Majesty the Queen in Right of Alberta as represented by the Department of Justice and Solicitor General Defendants _______________________________________________________ Reasons for Decision of W.S. Schlosser , Master, Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is an application to amend a Statement of Claim, fairly late in the day.

The Defendants oppose some of the amendments but agree to others. This amended Statement of Claim would be the fifth since the original was filed in February 2015. Facts [ 2 ] Dr. Sauvageau served the Province, first as Assistant Chief Medical Examiner, then as Deputy Chief Medical Examiner (July 2010) and, finally, as Chief Medical Examiner (July 1, 2011 - June 30, 2014). [ 3 ] In general terms, the lawsuit started as a claim arising from the Province’s refusal or failure to renew her term as Chief Medical Examiner.

Now the claim is based on her expectation that she would work as a pathologist in the Medical Examiner’s office until retirement. [ 4 ] The very thorough 24 page initial Statement of Claim raised a variety of causes of action. Special damages of $2.1 million for loss of income were claimed, together with just under $1 million for anguish and mental distress. There were claims against other named Defendants who are no longer parties. The proposed amendments take the claim to over $7.5 million. [ 5 ] The proposed amendments, objected to by the Crown are as follows: 10.

The contractual relations between the Plaintiff and the Defendant were partly oral, and partly in writing.

11. In 2009, the Plaintiff was working as a forensic pathologist in Montreal, Quebec for the Government of Quebec. Her employmentwas on a permanent basis. 12. Dr. Graeme Dowling, who was then the Chief Medical Examiner of Alberta, approached the Plaintiff in 2008 and inquired if shewould be interested coming to Alberta to work as a Medical Examiner. 13. The Plaintiff followed up with Dowling in 2009 to discuss her employment opportunities in Alberta. 14. Dr.

Dowling, on behalf of the Defendant, represented to the Plaintiff on three occasions that the proposed written contract was only aformality which was required for the purpose of paying the Plaintiff at a level higher than the usual grid for government employees. Dr.Dowling, on behalf of the Defendant and as agent for the Defendant, verbally promised and represented to the Plaintiff that heremployment with the Defendant would last until she retired, or she choose to leave, or if her employment was terminated for cause. 15.

The Plaintiff relied on the Dowling promises and representations and agreed with them (“the oral terms of the contract.”) 16. The Plaintiff was then given a written document which purported to represent the written terms of the contract. 17. The Plaintiff inquired of Dr. Dowling if she needed to speak with a lawyer before signing the written portion of the contract, and Dr.Dowling advised her no, the written contract was just a formality. 18. The oral terms of the contract and the written terns of the contract are hereafter collectively referred to as “the Contract”. ... 36.

The Plaintiff’s Contract with the Defendant was partly oral and partly in writing. Pursuant to the oral terms of the contract, thePlaintiff’s employment with the Defendant would last until she retired, or she choose to leave, or if her employment was terminated forcause. 37. In the alternative, the Defendant, through its officers and agents, represented to the Plaintiff that her Contract would be renewed fora five-year term, as set out below. ... 100.

As stated previously, Graeme Dowling on behalf of the Defendant, represented to the Plaintiff that her employment with theProvince would last until she retired, or she choose to leave, or if her employment was terminated for cause. List of Authorities 1. Alberta Rules of Court, Alta Reg 124/2010, Rules 3.65, 3.66; 2. Fatality Inquiries Act, RSA 200, c F-9; 3. Limitations Act, RSA 2000, c L-12; 4. Wrzesien v Arnett & Burgess Pipeliners Ltd, 2013 ABQB 59; 5. Hunter Financial Group Ltd v Maritime Life Assurance Company, 2007 ABQB 263; 6. Hunter Financial Group Ltd v Maritime Life Assurance Company, 2009 ABCA 199; 7.

Beer v Townsgate I Ltd, (1997) ( (ON CA), 36 OR 3d) 136 (ONCA). By the Court 1. Attila Dogan Construction v AMEC Americas Limited (AMEC E & C Services Limited and AGRA Monenco Inc), 2013 ABQB525 Aff’d 2013 ABCA 74; 2. IFP Technologies (Canada) Inc. v EnCana Midstream and Marketing, 2017 ABCA 157 (paras 79 et seq). Analysis

i) The Law [6] The law about Amendment of Pleadings with leave (rule 3.65 (1)) is well settled. Amendments are generally permittedhowever later or careless, subject to four exceptions: 1. The amendment would cause serious prejudice to the opposing party, not compensable in costs; 2. The amendment requested is ‘hopeless’; 3. Unless permitted by Statute, the amendment seeks to add a new party or a new claim after the expiry of the limitation period; and

4. There is an element of bad faith associated with a failure to plead the proposed amendments in the first instance. [ 7 ] The ‘general rule’ comes from the Court of Appeal’s decision in Balm v 3512061 Canada Ltd , 2003 ABCA 98 , at para 43 . The four exceptions are set out by Chief Justice Wittman in the Attila Dogan case. The law in this area is summarized by Mr.

Justice Manderscheid in the Wrzesien case, at paras 19 and following. [ 8 ] A successful Applicant may be entitled to the costs of an application but may be obliged to bear the costs consequences of the amendments (rule 3.66). [ 9 ] The Crown’s position is that the amendments ought to be refused on the principle of the Hunter case at (paras 37-39). That case involved a late amendment, prejudice in answering new claims and no good explanation for why the amendments were not sought earlier. [ 10 ] The Crown further argues that these new claims are hopeless. ii) Application

a) Late and Careless [ 11 ] In this case the disputed amendments are both late and careless on Dr. Sauvageau’s part. The Statement of Claim has been amended four times already. Dr. Sauvageau explains in her affidavit: 8. Unfortunately, I had not previously discussed these matters with my legal counsel and they did not come until I was questioned by [defence counsel] on November 9, 2016. [ 12 ] It scarcely seems believable that Dr.

Sauvageau should have forgotten about five million dollars of her claim for so long a time; but while this may impair the credibility of her claim, it is not a sufficient reason for refusing the amendment. There may be an interesting evidentiary issue with respect to whether the earlier pleadings and the change of position constitute a formal admission from which the party is now attempting to resile, but that is for the trial judge.

b) Limitations [ 13 ] The proposed amendments are added claims for the purposes of section 6(2) of the Limitations Act and the threshold there is low as well. The Crown concedes that these claims would not be barred by the Limitations Act.

c) Hopelessness [ 14 ] I acknowledge that it is usually impossible to assess a proposed claim in any detail at this stage and I make no comment about the ultimate outcome of the action. However, I will say that this new claim takes us into a murky area of the law. Dr. Sauvageau’s claim is based on something her predecessor, Dr. Dowling, said. These pre-contractual discussions are alleged either to be a term of the contract, or to have constituted an actionable misrepresentation. [ 15 ] Dr.

Sauvageau’s position as Chief Medical Examiner was governed by the Fatality Inquiries Act (especially sections 5 and 8) and requires the approval of Cabinet and the Lieutenant Governor in Council. Continued employment as a pathologist in the Medical Examiner’s office would not require such approvals. Dr. Sauvageau’s written contracts speak of termination but not of renewal and there is no ‘entire agreement clause’. It is the classic plea that the written contract does not match the actual agreement. [ 16 ] What Dr.

Dowling said is claimed, in the alternative, to be an actionable misrepresentation binding on the Crown, for which Her Majesty in Right of the Province is vicariously liable. Dr. Dowling is not named as a party. [ 17 ] A similar logic applies to this cause of action as well. Reliance on a representation has to be reasonable. It may be difficult to accept that it would be reasonable for the Plaintiff to believe that Dr. Dowling could bind the Lieutenant Governor in Council and Cabinet with respect to continued employment, or renewal as Chief Medical Examiner. It is perhaps not so far-fetched that what Dr.

Dowling might have said could have engendered an expectation of continued employment as a pathologist. [ 18 ] These claims might best be described as optimistic and legally agile but not, at this stage, hopeless.

d) Prejudice not Compensable in Costs. [ 19 ] The Hunter Financial case is an instance of the Court finding prejudice arising from an amendment that would not be compensable in costs. In my view, we have not yet reached this threshold. [ 20 ] We do not have the same time frame or issues presented in the Hunter case. As far as we know Dr. Dowling is available for future examination. The steps that will be occasioned by the amendment would ultimately be compensable in costs. [ 21 ] I acknowledge that the issues in this case are expanding, rather than contracting, in a significant and substantial way.

I also acknowledge the Crown’s position that at some point the Court should say ‘enough is enough’ but, in my view, we are still not beyond the point where the harm caused by this late amendment can be remedied in costs. [ 22 ] The claim here has gone from roughly $2.1 million dollars to over $7.5 million dollars. In either case costs would be a multiple of Column 5 of

Schedule C. The amendments may require an amended defence, additional production and questioning. It may certainly require further expert opinion evidence. It would be my inclination to allow the costs of the successful application in the cause

but require that Dr. Sauvageau pay the costs of the consequences of the amendments starting with an amended defence, if necessary, on a multiple of Column 5. I will leave it open to the parties to speak to these costs within 30 days if they wish. [ 23 ] Finally, the Style of Cause is no place for a professional designation, honorific, or other description indicating status, or qualification, unless the party enjoys this statutory privilege; as does the Queen. ‘Dr.’ should be removed from the Style of Cause in the amended pleadings. Disposition [ 24 ] The application is allowed.

The new pleading is to be filed and served within 14 days of the date of the Order. Heard on the 16 th day of June, 2017. Dated at Edmonton, Alberta this 18 th day of July, 2017. W.S. Schlosser M.C.Q.B.A. Appearances: Allan A. Garber Allan Garber Professional Corporation for the Plaintiff Craig W. Neuman, Q.C. and Jessica Thomson Neuman Thompson for the Defendants