Salmon v Mama Panda Ltd, 2021 ABQB 569

Court of Queen’s Bench of Alberta Citation: Salmon v Mama Panda Ltd, 2021 ABQB 569 Date: 20210727 Docket: 1703 21765 Registry: Edmonton Between: Janice Salmon and Her Majesty the Queen in Right of Alberta Plaintiff - and - Mama Panda Ltd., Apple Betty's Buffet Ltd. Dr. Jacques Edmund Brussow, Dawson Creek and District Hospital Also Known as Dawson Creek and District Health Care Society, and the Northern Health Authority and Mama Panda Management Ltd. Defendant (Respondent) - and - Dr.

Kevin Bruce Page Third Party (Applicant) _______________________________________________________ Reasons for Decision of the Honourable Madam Justice R.E. Nation _______________________________________________________ [ 1 ] This is a decision on a

summary dismissal application which was argued on June 23, 2021. Dr. Page, the third party in this lawsuit, requests

summary dismissal of the third party notice filed against him by the defendants, Mama Panda Ltd and Apple Betty’s Buffet Ltd. (the “Panda defendants”), on the basis that the third party notice was filed outside of the limitation period set out in section 3(1.1) of the Limitations Act , RSA 2000, c L-12 (the “ Act ”) and is not saved by section 6(4) of the Act .

[ 2 ] The fact that this is a

summary dismissal application puts the onus on the defendant to prove that there is no genuine issue for trial. If the limitation defence to the action is not established, the

summary dismissal application will fail. The merits of the third party action are not in issue in this application. The Facts [ 3 ] I will outline the chronology of the relevant facts, established in the affidavit evidence and not disputed: 1. Janice Salmon filed and served an amended statement of claim on February 20, 2009. In it she alleged that she suffered a left ankle injury after a slip and fall on the sidewalk in the Panda defendants’ parking lot. She sued the Panda defendants, and also Dr.

Brussow and the Dawson Creek hospital and Health Care District, alleging that her medical treatment had resulted in an aggravation of the ankle injury, as a result of an improper casting by Dr. Brussow after surgery. The pleading alleged that the cast was left until it was necessary to recast the ankle on April 13, 2007, and due to the delay in properly casting the ankle, Ms. Salmon’s health was compromised. 2.

The Panda defendants had insurance and provided the Amended Statement of Claim to their insurer, Optimum, which assumed conduct of the claim, and all further service and conduct of the litigation was carried on by Optimum. It is not in dispute that Optimum was an agent for the Panda defendants. It is also clear that the Panda defendants had no further involvement in the litigation: questioning of the defendants has not happened, there was no further service on them, and they have no personal knowledge of the litigation after service of the claim. 3.

The Canadian Medical Protective Association (the “CMPA”) is a voluntary, not-for-profit, mutual defence organization for physicians who practice medicine in Canada. The CMPA was involved in the defence of this matter, initially for Dr. Brussow and later for Dr. Page. 4. Ms. Carter was the employee of Optimum who handled the file for the Panda defendants. She obtained a waiver of the necessity to file a defence. An independent adjuster was retained to investigate liability, though he was not looking at apportionment, in terms of the medical malpractice aspect of the claim. 5. Dr.

Brussow filed a Statement of Defence on November 17, 2010, in which he alleged that “someone other than Dr. Brussow” had put the offending cast on the plaintiff’s ankle. He then filed an affidavit on November 30, 2010 in support of a

summary dismissal. His sworn evidence was that he applied a cast to the plaintiff’s foot on April 12, 2007 but on April 13, the plaintiff attended at emergency as the cast he applied felt too tight and the physician on call reapplied a new cast. Dr. Brussow swore that as his cast was on for only 36 hours, it could not have caused the plantar contracture complained of as the basis of the medical malpractice. On January 27, 2011, Dr. Brussow filed an application for

summary dismissal. None of these materials were provided to or served on the Panda defendants, or Ms. Carter, and were unknown to Ms. Carter until January, 2016. 6. Ms. Carter requested medical records from the plaintiff’s counsel, Mr. Burnham. He served on Ms. Carter a notice of ceasing to act for the plaintiff on September 30, 2010. No reason was given for his ceasing to act. In fact, he ceased to act as he had named the wrong physician in the action. This fact was not known by or disclosed to Ms. Carter until 2016. 7. On March 23, 2011, Ms. Carter spoke to new counsel for the plaintiff, Mr. Robinson.

He told her that there was no evidence of medical malpractice on the file, but he had to look into it further. He did not tell her that he was hired as new counsel as the plaintiff’s first counsel had failed to sue the right doctor within the limitation period, nor did he advise that an action was contemplated against the first lawyer. An action against Mr. Burnham was filed but a copy of the pleadings was not provided to Ms. Carter. 8. Mr. Robinson provided about 480 pages of medical records and other documents to Ms. Carter on June 22, 2011. These were reviewed by Ms. Carter.

Within the records was a statement of benefits paid for about 250 medical attendances by the plaintiff. If reviewed carefully, they showed that Ms. Salmon saw: Dr. Brussow and had surgery on March 28, 2007; Dr. Brussow in emergency on March 29; Dr. Brussow for two billing units on April 4 and two billing units on April 12; and Dr. Page for an emergency visit and a general service visit on April 13, 2007. Dr. Brussow’s complete chart had a report by Dr.

Fletcher that noted when the cast was removed on May 14, 2007, the plaintiff’s foot was in a marked equinous position in the cast and as a result she had an equinous contracture. Dr. Fletcher’s report said: “This will take quite a lot of physiotherapy work out, but hopefully should come out with not too much difficulty”. The specific services provided by Dr. Page were not noticed by Ms. Carter when she reviewed the records, nor was the significance of the recast on April 13. 9. On August 10, 2012 Mr. Carter received a medical report from Dr.

Russell, a doctor retained by the plaintiff, and on January 17, 2014 an expert report from an occupational therapist both of which indicated complications with the casting. 10. In August, 2015, Ms. Carter received a settlement proposal from Mr. Robinson which did not mention Dr. Page or the lawsuit against Mr. Burnham. The proposal indicated that the plaintiff’s cast was applied on April 12 by Dr. Brussow. It indicated that the next day the plaintiff was in pain so she returned to the emergency room, and incorrectly stated that Dr.

Fletcher (the treating orthopedic surgeon) removed her cast as it was too tight, applied a new cast and referred Ms. Salmon to a physiotherapist. Mr. Robinson did not inform Ms. Carter of Dr. Page’s involvement or the lawsuit against Mr. Burnham in the settlement proposal, or in any of the subsequent email communication up to January of 2016. 11. In December, 2015, the Panda defendants were directed to file a defence, and did so on January 20, 2016. On January 22, 2016, Mr. Robinson then provided Ms. Carter with the some of the pleadings filed in the action.

In February 12, 2016, the Panda defendants filed notices of claim against co-defendants against the co-defendants Dr. Brussow and the hospital. 12. On May 24, and May 27, 2016, Dr. Brussow and the hospital defendants filed applications for

summary dismissal and affidavits in support. It was service of those documents that gave Ms. Carter and counsel for the Panda defendants, Mr. Corrigan, direct notice of

Dr. Page’s involvement and that the malpractice claim should against Dr. Page, not Dr. Brussow. On May 30, 2016, Mr. Corrigan wrote a letter to Dr. Page advising him of the impending third party claim. 13. On July 12, 2016, Mama Panda filed a third party claim naming Dr. Page as a third party. 14. Between March 23, 2011 and January 20, 2016, Ms. Carter did not: retain a medical expert to review the records; assess the merits of the medical malpractice claim; ask the plaintiff’s counsel if he had changed his idea about liability; order a procedure card from the court or ask for other pleadings; or contract Dr.

Brussow’s counsel to discuss his position. 15. Dr. Page first learned about this action upon receiving the letter from Mr. Corrigan dated May 30, 2016. He contacted the CMPA to defend him. 16. It is admitted for the purpose of this

summary trial that Dr. Page does not allege any prejudice arising from the fact that he was not advised of the claim until 2016, for the purposes of an analysis under s. 6(4) of the Act . The Issues [ 4 ] The issues arise from the application of the Act to the facts, to determine if the third party notice was filed beyond the limitation period. This requires the Court to make the following determinations: 1. Can the Applicant establish that the Respondents knew or ought to have known that Dr. Page should have been named as a Defendant/Third Party before July 12, 2014, to establish the third party notice was filed out of time under

section 3 of the Act . 2. If the Applicant has met the onus to prove issue one, does section 6(4) of the Act save the third party claim? Issue #1- The Application of

Section 3 of the Act [ 5 ] The Act states: 3(1.1) If a claimant who is liable as a tort-feasor in respect of injury does not seek a remedial order to recover contribution under section 3(1)(

c) of the Tort-feasors Act against a defendant, whether as a joint tort-feasor or otherwise, within (a) 2 years after (

i) the later of (

A) the date on which the claimant was served with a pleading by which a claim for the injury is brought against the claimant, and (

B) the date on which the claimant first knew, or in the circumstances ought to have known, that the defendant was liable in respect of the injury or would have been liable in respect of the injury if the defendant had been sued within the limitation period provided by subsection (1) by the person who suffered the injury, if the claimant has been served with a pleading described in paragraph (A), or (ii) the date on which the claimant first had or in the circumstances ought to have had the knowledge described in subclause (i)(B), if the claimant has not been served with a pleading described in subclause (i)(A), ... whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim for contribution. ...

(2) The limitation period provided by subsection (1)(

a) or (1.1)(

a) begins ... (

b) against a principal when either (

i) the principal first acquired or ought to have acquired the knowledge prescribed in subsection (1)(

a) or (1.1)(a), or (ii) an agent with a duty to communicate the knowledge prescribed in subsection (1)(

a) or (1.1)(

a) to the principal, first actually acquired that knowledge, [ 6 ] The parties agree that

section 3 as applied to the facts requires a determination of the date that would trigger the two-year limitation set out in section 3(1.1)(a)(i)(B). This provision requires the third-party notice to be filed within 2 years after the date on which the claimant (here the Panda defendants) first knew, or ought to have known that the defendant (here Dr. Page) was liable in respect of the injury. [ 7 ] It is clear from the facts, and not disputed by counsel for Dr. Page, that the Panda defendants turned over conduct of the

lawsuit to their insurers, and had no personal knowledge or actual involvement in the instruction of counsel or running of the litigation.They had no knowledge of the details of the plaintiff’s treatment. In addition, from the facts as they are presented and I find them, Ms.Carter as agent for the Panda defendants had no personal knowledge of the claim until early 2016. There is no argument that the Pandadefendants ought to have known about the claim against Dr. Page, any claim that they ought to have known, would be that their agent,Optimum, and here Ms.

Carter, ought to have known. [8] This is where the positions of the parties diverge as to the application of the Act to the facts. The applicant argues that thenext determination is whether Ms. Carter ought to have known about the claim. The respondents argue that the

interpretation of the Actdoes not impress that knowledge on the principal, even if it is proven that the agent ought to have known. 1.1 Section 3(2) of the Act as it applies to the Constructive Knowledge of the Agent [9] Does the wording of the Act result in the Panda defendants being imputed with the constructive knowledge of their agent? [10] Section 3(2) of the Act states that the limitation period begins against a principal when either the principal first acquired orought to have acquired the knowledge prescribed (that Dr.

Page was liable in respect of the injury), or an agent with a duty tocommunicate that knowledge first actually acquired the knowledge. Thus, there is an issue as to whether it is appropriate to considerwhat the agent ought to have known. [11] The respondents argue that a plain reading of the Act indicates that the limitation against the principal begins when thatprincipal acquired or ought to have acquired the relevant knowledge. However, in the case of an agent, only their actual knowledgesuffices to start the principal’s limitation period. The respondents argue that this

interpretation is consistent with the modern approach tostatutory

interpretation, to read the words of

an act in the entire context and their grammatical and ordinary sense with the scheme of theact, the object of the act and the intention of parliament: Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27(SCC). [12] The applicant argues that a principal is not entitled to rely on the fact that its agent actually acquired knowledge of the allegedclaim at a date later than when the claim could have been discovered with reasonable diligence. They argue the case of Allison vFrancescutti, 2003 ABQB 983, in which the court was dealing with the knowledge of a solicitor, acting as the agent.

There, it wasargued that equivalent wording meant the discoverability did not apply to a lawyer in the circumstances, as the wording refers to theagent first actually acquiring knowledge. The court held that the principal, the plaintiff, knew or ought to have known, and she was notsaved by the wording of the Act that the agent did not have actual knowledge.

The court held at para 30 that the Act imposes the sameobligation on all principals as it does on agents. [13] The facts are different in this case than in Allison, as the Panda defendants (the principal) did not have knowledge nor can itbe argued they ought to have knowledge.

However, the social policy reason behind the argument is the same; to impress the principalwith the knowledge of the agent. [14] Where a principal has turned over the entire defence to an insurer, who then assumes full responsibility for the defence of theclaim, with no or little involvement of the principal, the principal should be bound by the knowledge or subjective knowledge of theagent.

This includes situations such as lawyers for parties or insurers, to name a few examples that illustrate the relationship. [15] Thus, although it cannot be said that the Panda defendants ought to have known of the claim, they would be bound should theinsurer running their defence be found to ought to have known. 1.2 Did the Agent have Constructive Knowledge? [16] To be successful, the applicant who has the onus in the

summary judgment application, has the burden to prove on the civilstandard of proof that Ms. Carter in the circumstances ought to have known that Dr. Page was liable in respect of the injury. 1.2.1 The Case Law [17] Much of the case law in relation to applying the words “ought to have known” of a claim in the context of limitationslegislation deals with the plaintiff knowing of the existence of a cause of action. Basically, the party must be in possession of sufficientfacts to allege negligence.

This requires the party to know that the injury occurred, that it was attributable to the party to be sued, and thatthe injury, assuming liability, warranted bringing a proceeding. [18] A suspicion is not sufficient, yet all details are not necessary, just the facts sufficient to support an allegation of negligence:Kydd v Abolarin, 2011 ABQB 690 at para 36. Likewise, a plaintiff is required to exercise reasonable diligence to acquire the factsnecessary to determine whether to commence an action: Kydd at para 39.

In some instances, the requirement of due diligence means thathaving a suspicion will be enough to put the plaintiff on notice, or trigger a need for further investigation or inquiry: Longo v MacLarenArt Centre Inc., 2014 ONCA 526 at para 42. Where there is something that gives rise to a need for further inquiry, the plaintiff must actreasonably in investigating the matter to determine whether a claim has arisen. A limitation period will not be tolled while a plaintiff sitsidle and takes no steps to investigate.

Again, the nature and extent of the required action will depend on all the circumstances of the case.One must look to: the nature of the acts leading to the claim; the circumstances under which it occurred; the nature of the loss or injury;the nature of the relationship between the parties; the sophistication of the parties; was there a business relationship, if so, standardpractices of the parties in that type of relationship; and what steps were actually required to gather the information to ascertain materialfacts giving rise to the claim: Fibabanka A.S. v Arslan, 2019 SKQB 94. [19] When the party does not have actual knowledge, the court must consider what a reasonable person would have known, orcould have discovered, with the exercise of reasonable diligence. [20] For example, in Crawford v Acta General Inc., 2007 ABQB 338 (reversed on other grounds 2008 ABCA 106, leave to appeal

to SCC refused [2008] S.C.C.A. No. 183) it was found that the records were not so cryptic that Ms. Slavick could not read the documents, and her counsel had read and understood the documents sufficiently that counsel related the substance of the records to an expert. In Babjak v Karas, 2018 ONSC 2093 , the fact that the plaintiff had a vison problem since the procedure was sufficient to make out discoverability, so although she did not have a medical opinion of negligence, it was possible for her to know the material facts without a medical opinion.

The plaintiff was required to act with due diligence in acquiring facts to be fully apprised of the facts upon which negligence (malpractice) may be based. 1.2.2 Application of the Law to the Facts [ 21 ] The applicant argues that Ms. Carter could have done numerous things that would have alerted her to Dr. Page’s involvement. She could have: tried to evaluate the malpractice claim, if she had looked at the medical records in more depth, she would have seen Dr. Page’s involvement; she could have ordered the court record, and then been aware of and ordered a copy of the Statement of defence and affidavit of Dr.

Brussow which would have indicated the issue; or she could have talked to counsel for Dr. Brussow. Also, if she had referred the file to legal counsel earlier, that counsel would have likely ordered pleadings and talked to other counsel and been aware of the issue of the failure to name Dr. Page as the medical doctor who applied the offending cast. The applicant argues that with reasonable diligence, Ms. Carter could have ascertained that Dr. Page was involved in the casting, soon after the medical reports were reviewed. Ms.

Carter was aware that it was the casting that was the issue, and with any number of the inquiries above she would have determined that Dr. Page had applied the offending cast. She could have got the information and therefore, she ought to have known. [ 22 ] The defendants argue that one has to look at all of the circumstances of the case, with the knowledge that Ms. Carter had. She received an amended statement of claim which pled in detail the allegations of negligence that Dr. Brussow casted Ms.

Salmon’s ankle post-surgery in a manner that was not in accordance with medical standards for casting which resulted in complications and delays in healing. Due to his negligence, the case was left until it became necessary to remove and recast the left ankle on April 13, 2007.The delay in proper casting left the healing compromised. [ 23 ] The defendants point out that counsel for Dr. Brussow shared no information, neither the statement of defence nor the affidavit in support of

summary dismissal, with Ms. Carter. Plaintiff’s counsel, Mr. Robinson, was not transparent, he did not advise Ms. Carter of the misnaming of Dr. Brussow, or the action against the first solicitor, and sent out a settlement proposal which was highly misleading, indicating that Dr. Fletcher placed the second cast. It was not until January, 2016 that the Brussow Statement of Defence was provided and other documentation that would signal an issue with the identity of the doctor doing the second cast, and that the offending cast was not Dr. Brussow’s.

It is alleged that the issue about the second cast and the involvement of another doctor was in fact obscured from Ms. Carter’s knowledge. [ 24 ] This is a fact-based inquiry, it requires one to look at what a reasonable person in the position of Ms. Carter, would have known or could discover with the exercise of reasonable diligence. No evidence was led at this

summary trial about the relative duties or standards of an insurance adjuster. An insurer has a duty to its insured to investigate the claim, and act with reasonable diligence to see that the claim is resolved in a timely way: B. Billingsley, General Principles of Canadian Insurance Law (2 nd ed. 2014), at p. 241. [ 25 ] When I review these circumstances, it was the Amended Statement of Claim which informed the insurance agent that there was a claim against a treating doctor for incorrect casting that had to be recast on April 13, 2007.

At this time, it was alleged that the delay in properly casting the ankle by Dr. Brussow was the subject of the claim. It was clear there may be a claim against the treating doctor and, if successful, this would likely reduce the exposure of the Panda defendants. There was nothing ever to suggest to Ms. Carter that the actual offending physician had not been identified and correctly sued by the plaintiff. In fact, steps were taken to obscure that information from her (largely, the settlement proposal sent and the discussion that liability was unlikely).

Plowing in detail through the statement of benefits record, would show Dr. Page had seen the plaintiff on April 13, but no indication of the exactly the services rendered, and certainly no clarification that it was his cast that was the issue. [ 26 ] It is true that had Ms. Carter ordered the pleadings of Dr. Brussow, or perhaps if she had retained an expert to review the claim about the equinous ankle, it would have come to light that it was the recast that was the problem, and that was applied by Dr. Page. [ 27 ] At first blush, one might ask why Ms.

Carter had not taken any of the steps that the applicant suggests would have given her further information that the wrong doctor was named in the Amended Statement of Claim and the claim for negligence had not been properly described. In hindsight, it is easier to see where information was that may have alerted Ms. Carter to the real facts. However, the test is a reasonable person using reasonable diligence, in the circumstances. Here Ms. Carter, who is a trained insurance adjuster, found herself assessing the claim against the insured, the Panda defendants, and evaluating the claim.

Nothing actually put her on notice or suggested that she should be tracking down who was negligent, all indications were that the plaintiff had alleged specific acts of negligence by a specific doctor. The plaintiff’s counsel was not requiring defences, and efforts were being made to provide medical information and evaluate and settle the claim. In these circumstances, I do not find that a reasonable person in the position of Ms. Carter would have known or could discover with the exercise of reasonable diligence that the actual malpractice was the recasting on April 13, it was the period after that until Dr.

Fletcher took off the cast in May that was in issue, and the recasting was done not by Dr. Brussow, but by Dr. Page. [ 28 ] As a result, I do not find that the third party notice should be struck out due to the limitation defence arising under section 3(1.1) of the Act . Issue #2- Does Section 6(4) of the Act Save the Third Party Claim? [ 29 ] In light of my decision above, it is not necessary to determine this issue.

However, it was argued, and the parties put a great deal of time and effort into examining on affidavits and argued one previous application about disclosure on this issue, which resulted in a written decision both by this Court and the Court of Appeal. As a result, I will comment on this argument even though it is obiter to this decision.

2.1 The Relationship of Sufficient Knowledge with Prejudice [ 30 ] The Act states: 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. ...

(4) When the added claim adds or substitutes a defendant, or changes the capacity in which a defendant is sued, (

a) the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding, and (

b) 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. [ 31 ] Section 6(4)(

b) provides that notwithstanding the expiration of the relevant limitation period when this third party notice was filed, Dr. Page is not entitled to immunity from liability if Dr. Page received, within the limitation period applicable to the added claim plus the time proved by law for the service of the process, sufficient knowledge of the added claim that he will not be prejudiced in maintaining a defence to it on the merits. The onus is on Dr. Page to establish that section 6(4) (

b) does not save the third party claim. [ 32 ] Dr. Page does not allege prejudice in maintaining a defence, as his memory of his involvement on that one day is limited to the notes he made at the time, so there is no difference to three years out, or nine years out: the notes which exist are all the documents and memory he has. [ 33 ] The applicant argues that Dr. Page had no notice of this action until he was notified by letter on May 30, 2016 and this notification was not within the three years prescribed: the two years to bring the claim and one year to serve it. It is argued that as Dr.

Page had no notice, he could not have sufficient knowledge within that time. [ 34 ] The Panda defendants reframe this issue, in the context of a

summary dismissal application, as requiring Dr. Page to show that notice received by him (personally or through his agent) was not “sufficient knowledge of the added claim that he will not be prejudiced in maintaining a defence to it on the merits”. The Panda defendants argue that (1) actual notice is not necessary, just knowledge in these circumstances and (2) as the CMPA acted for Dr. Brussow, it must have known of Dr. Page’s involvement when it prepared the affidavit for Dr. Brussow to swear in 2009. As the CMPA is akin to an insurer, the body to which Dr.

Page would go for a defence, it had notice of and knowledge of the claim by 2009, and this is sufficient to be notice to Dr. Page, as CMPA is his agent. [ 35 ] The Panda defendants point to case law that has addressed this issue, and note that McLaughlin v Broddy , 2006 ABQB 914 suggests that agent knowledge is not relevant or sufficient under s. 6 (4) (

b) of the Act . However, Poelman J came to an opposite conclusion in McDonnell v Csaki, 2014 ABQB 452 , holding that this

interpretation may especially be relevant to an insured defendant. The issue is sufficient knowledge of the added claim as not to be prejudiced. At paras 44 & 47, he wrote: With respect, I am not persuaded that as a general rule section 6(4)(

b) should be interpreted as always requiring personal knowledge of a defendant, particularly an insured defendant. First, I am concerned it would do mischief to create a rule that when interpreting legislation, knowledge of an agent cannot be imputed to the principal except where expressly provided.

The principles of agency would tend to the opposite presumption, because notification given to an agent is presumptively effective as notice to a principal if it is received by an agent within the scope of its authority — regardless of whether it is subsequently transmitted to the principal, and the law imputes the knowledge to the principal. ... Once again, the wording of the subsection makes fine

definitions unwarranted. No doubt it is important to consider what knowledge a defendant had of the new claimant. But the legislation does not expressly specify that the identity of a specific claimant be known within the defined period. It speaks of a sufficient knowledge that will avoid prejudice to the defence. In some cases, that may mean the specific plaintiff. In others, it may mean a class or type of plaintiff. [emphasis added] [ 36 ] I favour the

interpretation of Poelman J. There are circumstances where notice to and knowledge of an agent, may be notice to the principal, depending on the circumstances of the case. This

interpretation of the language of the Act and its application to agents would be more consistent with my reasoning in relation to the language of knowledge and subjective knowledge of agents and whether that could be attributable to principals as it relates to the

interpretation of section 3(2) discussed in paras 9-15 above. [ 37 ] In my view, section 6(4) (

b) of the Act is primarily concerned with avoiding prejudice to parties who are added to an action long after the initial claim is filed. The words “sufficient knowledge of the added claim that the defendant will not be prejudiced” seem to indicate that knowledge is a means of removing prejudice. Where there is prejudice due to a lack of knowledge, the amendment should be barred: that is logical. However, it is a different proposition altogether to say that where there is no prejudice, insufficient knowledge in itself should negate the operation of section 6(4) (b). [ 38 ] Dr.

Page properly concedes that he is not prejudiced by lateness of the claim against him, as he has no independent recollection of treating Ms. Salmon on April 13, 2007. He relies wholly on his notes from that day to refresh his memory, and these notes will be available to him if he is to testify. Given his concession, I see no issue with allowing the claim against him to proceed where his

agent, CMPA had full knowledge of the claim well within the limitation period. 2.2 CMPA as Agent or Insurer [ 39 ] Considerable written and oral argument was spent as to whether the CMPA was an agent of Dr. Page. There is also a live issue as to whether CMPA is an “insurer”, which is not particularly relevant if CMPA is his agent. [ 40 ] It is not crystal clear how CMPA instructed their counsel, or what exactly was known about Dr. Page’s involvement in 2009, as certain answers to undertakings requested on questioning were refused on the basis of solicitor/client relationship.

However, information in the affidavits sworn by Dr. Brussow and prepared by his counsel (also instructed by the CMPA), make it clear that the CMPA, in instructing counsel for Dr. Brussow, was aware of the involvement of Dr. Page in the recast. This determination would be essential in their application to dismiss the action against Dr. Brussow, for which an affidavit was prepared and filed, along with the application for

summary dismissal filed in November, 2010. This affidavit avoided mention of Dr. Page, stating only that “another physician” attended to Ms. Salmon. [ 41 ] Dr. Page was a member of CMPA and he immediately turned to that group to afford him a defence upon actual notice. The documentation provided about Dr.

Page’s membership in the CMPA and their contractual agreements in terms of defence, and the fact that the CMPA is instructing counsel on his behalf and may indemnify him if there is a successful claim, all point to the reality that whether they are strictly an insurer or not, in these circumstances they are his agent in terms of the defence of this matter. [ 42 ] If I had to decide the matter, I would hold that in the unique circumstances of this case, CMPA, as his agent, had detailed knowledge of the claim in 2009. In addition, Dr. Page does not allege prejudice in the defence of this matter.

The issue in section 6(4) of the Act is whether there was sufficient knowledge that there is no prejudice. [ 43 ] The applicant has failed to meet the onus it has, to show that Dr. Page did not have sufficient knowledge of the claim meaning he would be prejudiced to allow it to continue. Conclusion [ 44 ] The application is dismissed. Heard on the 23 rd day of June, 2021. Dated at the City of Edmonton, Alberta this 27 th day of July, 2021. R.E. Nation J.C.Q.B.A. Appearances: Katie Stys and Jessie Larter For the Applicant- Dr.

Kevin Bruce Page David Corrigan, QC for the Respondents- Apple Betty’s Buffet Ltd. and Mama Panda Management Ltd.