Innes v Ferguson, 2018 ABQB 959

Court of Queen’s Bench of Alberta Citation: Innes v Ferguson, 2018 ABQB 959 Date: 20181122 Docket: 1503 07954 Registry: Edmonton Between: Kathleen Innes, by Her Litigation Representative Jerry Innes, and Her Majesty the Queen In Right of Alberta Plaintiffs/Applicants - and - James Ferguson, Nirupa Srikisson, Abraham Van Der Merwe, Michael Peyton and Alberta Health Services operating the Drayton Valley Hospital and Care Centre and Raapid North Defendants/Respondents - and - Darren Markland, Kenneth Makus, Dr.

Sandhu, Jonathan Davidow, Curtis Jonston, Richard Johnston, Damian Paton-Gay, the Governors of the University of Alberta Respondents _______________________________________________________

Reasons of Decision of W.S. Schlosser, Master in Chambers _______________________________________________________ [1] This is an application to add Defendants. The law is well settled. I need not repeat the tests and Balm v 3512061 CanadaLtd, 2003 ABCA 98, or Attila Dogan Construction and Installation Co. Inc. v AMEC Americas Limited, 2013 ABQB 525, affirmed2014 ABCA 74. The law is well settled and there is no disagreement about its application here. The issue has to do with the applicationof

section 5 of the Limitations Act, RSA 2000 c L-12. [2] The parties have agreed that the Plaintiff is a ‘person under a disability’ for the purposes of the Limitations Act and thisapplication.

Section 5 of the Act provides: 5(1) The operation of the limitation periods provided by this Act is suspended during any period of time that the claimant is a personunder disability. 5(2) The claimant has the burden of proving that the operation of the limitation periods provided by this Act was suspended under thissection. [3] In Knibb v Foran, 2013 ABQB 754, Eidsvik, J. held: [36] I agree with the Plaintiff and Defendants position that the way to interpret this

section and the new Limitation Act is to find that theLegislature intended to suspend the limitation periods for disabled people indefinitely, while they are disabled, despite the potential thatthis may mean claims against potential defendants could be brought later than normally would be the case. (emphasis added) In that case, Mr. Knibb’s mother had been appointed guardian and trustee pursuant to the Dependant Adults Act. The appointmentincluded the power to commence and settle litigation. [4] The Knibb case went to the Court of Appeal. The Court, affirming the judgment below, held: [26] This in turn raises the issue as to whether for the purposes of

section 5 of the Limitations Act, a “person under disability” includes aclaimant for whom an order of trusteeship has been granted and which order contains an explicit power to commence and settle litigationrelating to that person’s estate. ... [28] We can see no principled basis to draw any distinction between a representative that has express powers to sue on behalf of arepresented adult (as is the situation here) as opposed to one that does not. [29] We note the respondents’ argument that the effect of

section 5 is that the only “claimant” can be Knibb and that he is a disabledperson under the Limitations Act. We note that given the nature of Knibb’s disability, it is apparent that he will be a disabled person, inall likelihood, for the rest of his life. The respondents’ argument, taken to its logical extreme, means that the proceedings arising fromthe accident in question could be undertaken literally decades into the future. ... [35] We see no basis in the Limitations Act to hold that the “claimant” is anyone other than Knibb. This

interpretation can arguably leadto undesirable consequences in that the commencement of an action could be delayed for years or perhaps decades. That said, given theexpress wording of the current Limitations Act and the complete absence of any provision analogous to

section 59 of the formerLimitations of Actions Act, this

interpretation is not “manifestly absurd, or extremely harsh, unjust, or capricious”; Boardwalk Reit LLP vEdmonton, 2008 ABCA 220 , 437 AR 347 at paras 78-79. [5] Knibb was an ‘old rules’ case. His guardian and trustee commenced the action in 2006. The new rules did not come intobeing until 2010 (AR 124/2010). The proposed new Defendants argue that the requirement under the new rules for a person under adisability to sue by a litigation representative (Rule 2.11(

c) or (d)) should mean that the limitations clock begins to run when a litigationrepresentative is appointed. They argue that a guardian and trustee with the power to commence and settle litigation is distinguishableand, on that basis, I ought to distinguish Knibb. [6] The accident in this case occurred September 4, 2013. The Statement of Claim was filed in May 2015 by Ms. Innes’litigation representative. I acknowledge that a person under a disability is required to sue by their litigation representative.

I alsoacknowledge that a litigation representative has an enhanced status under the new rules – at least when compared with the old ‘NextFriend’, for example. A litigation representative now makes an Affidavit of Records (Rule 5.5) and may be questioned (Rule 5.17(1)(e)(i)). They are the person to be served in the proceedings (Rule 2.12(2)(a)). A litigation representative is a party for the purposes of acosts award (Rule 10.28), like a Next Friend was. However, the Court may impose terms on the appointment of the litigationrepresentative (Rule 2.21).

The litigation representative requires Court approval to settle or discontinue (Rule 2.19) and settlement fundsmust be paid into Court (Rule 2.20). Despite the enhanced status under the new rules, it cannot be said that a litigation representativebecomes the party. They are still more of a vehicle than a driver. [7] Despite the very resourceful argument of the proposed added Defendants, the requirement under the new rules for a person

under a disability to sue by their litigation representative does not detract from the fact that the claimant remains a person under a disability. If the Court’s

interpretation of the Limitation Act in Knibb was not what the Legislature intended, the Act would have been amended. Without legislative intervention, the limitation for a person under a disability remains open-ended and potentially perpetual despite the requirements under the new rules for a litigation representative. Heard on the 30 th day of October, 2018. Dated at the City of Edmonton, Alberta this 22 nd day of November, 2018. W.S. Schlosser M.C.Q.B.A. Appearances: David Devere Weir Bowen LLP for the Applicants Kenneth Bailey, Q.C. Parlee McClaws LLP for the Respondents