Bowes v McCubbin, 2023 ABKB 475

Court of King’s Bench of Alberta Citation: Bowes v McCubbin, 2023 ABKB 475 Date: 20230816 Docket: 1903 23417 Registry: Edmonton Between: Alicia Bowes and His Majesty the King in Right of Alberta Plaintiffs - and - Jacqueline McCubbin, Erin Kutz, Mary Sylla, Nicola Kenwell and Covenant Health owning and operating the Grey Nuns Community Hospital Defendants _______________________________________________________ Reasons for Decision of Applications Judge W.S. Schlosser _______________________________________________________ [ 1 ] This is a late application to amend pleadings.

The claim arises from the death of the applicant’s infant son, Huxley, on December 12, 2017. [ 2 ] The plaintiff, Alicia Bowes, now claims: $82,000.00, (the statutory amount under s 8(2)(

a) of the Fatal Accidents Act ) for herself and her spouse, Julia; funeral expenses of $15,000.00; counselling and ‘other claims’ in the amount of $30,000.00; and, health services provided to Ms. Bowes and Huxley in the amount of $15,000.00. [ 3 ] The plaintiff seeks to add her spouse, Julia Bowes, and proposes to claim the following: ... 32. The Plaintiffs Ms. Bowes and Julia Bowes also claim for the personal, psychological, psychiatric, and emotional injuries suffered as a result of the events of labour and delivery, the extent of Huxley’s medical challenges as a neonate and his death. ... 34.

The Plaintiffs claim for loss of income, loss of earning capacity, costs of care and future costs of care due to the personal, psychological, psychiatric and emotional injuries suffered as a result of the events of labour and delivery, Huxley’s medical challenges as a neonate and his death.

... 39(b). General Damages for pain, suffering and loss of enjoyment of life in the amount of$100,000; ... 40. The Plaintiff, Julia Bowes, claims the following remedy against all Defendants:

a) General Damages for pain, suffering, and loss of enjoyment of life in the amount of$100,000;

b) Loss of income, loss of earning capacity, cost of care, future costs of care, loss of ability to perform valuable services, gross up and management fees in the amount of $300,000; ... [ 4 ] Pleadings have now closed so leave of the Court is required. [ 5 ] Alicia is a nurse practitioner. Julia is a specialized physician. They live in Toronto, and they have two healthy children after Huxley. [ 6 ] Dr. McCubbin objects to the amendments primarily on the ground that the applicants’ evidentiary burden has not been met and that the claims are now out of time under the Limitations Act, RSA 2000, c L-12 .

The remaining defendants: the hospital and the nurses, object on the basis of the Limitations Act and also that the proposed amendments have no basis in law.

Cases or Authorities Cited By the Parties Alberta Rules of Court , Alta Reg 124/2010 ; Limitations Act, RSA 2000, c L-12 ; Judicature Act, RSA 2000, c J-2 ; AARC Society v Canadian Broadcasting Corporation , 2019 ABCA 125 ; Kent v Postmedia Network Inc, 2012 ABQB 559 ; Golden Estate v Neilson , 2011 ABCA 338 ; Castledowns Law Office Management Ltd v FastTrack Technologies Inc, 2012 ABCA 219 ; Attila Dogan Construction and Installation Co Inc v AMEC Americas Limited , 2014 ABCA 74 ; Saadati v Moorhead , 2017 SCC 28 ; Moore v 7595611 Canada Corp, 2021 ONCA 459 ; McFaul v Ranch-Lewchuk , 2015 ABQB 706 ; Gayton v Lacasse , 2010 ABCA 123 ; Sun Gro Horticulture Canada Ltd v Alberta Metal Building Sales Inc , 2006 ABCA 243 ; Proprietary Industries Inc v Workum , 2006 ABCA 226 ; Conway v Zinkhofer , 2006 ABCA 74 ; Barker v Budget Rent-A-Car of Edmonton Ltd , 2011 ABQB 123 ; Fatal Accidents Act, RSA 2000, c F-8 ; Limitation of Actions Act, SNB 2009, c L-8.5 ; 513320 Alberta Inc v St Jean , 2015 ABQB 826 ; 869120 Alberta Ltd v B & G Energy Ltd , 2011 ABQB 209 , 1142730 Alberta Ltd v Smok'in Guns Transport Ltd, 2018 ABQB 173 ; Aircraft Finance Services Inc v Miller , 2018 ABQB 1005 ; Altius Royalty Corporation v Her Majesty the Queen in Right of Alberta , 2022 ABQB 255 ; Andritz Ltd v Quality Fabricating and Supply Limited , 2010 ABQB 101 ; Aseniwuche Winewak Nation of Canada v Ackroyd LLP , 2023 ABCA 60 ; Brewin v Magyar, 2022 ABKB 729 ; Canadian Natural Resources Limited v Jensen Resources Ltd , 2013 ABCA 399 ; Domenic Construction Ltd v Primewest Capital Corp , 2020 ABCA 265 ; De Shazo v Nations Energy Company Ltd, 2005 ABCA 241 ; Grant Thornton LLP v New Brunswick, 2021 SCC 31 ; Guay v Wong , 2008 ABQB 638 ; Herman v Alberta (Public Trustee) , 2005 ABQB 337 ; HOOPP Realty Inc v Emery Jamieson LLP, 2020 ABCA 159 ; Ingram v Alberta (Chief Medical Officer of Health), 2021 ABQB 343 ; Kent v Postmedia Network Inc, 2012 ABQB 559; Kydd v Abolarin, 2011 ABQB 690 ; Milota v Momentive Specialty Chemicals, 2020 ABCA 413 ; Mitchell v Pytel , 2021 ABQB 403 ; Nasrin Karim Professional Corporation v Bank of Nova Scotia , 2007 ABCA 10 ; Stack v Hildebrand , 2010 ABCA 108 ; Steinkrauss v Afridi, 2013 ABCA 417 ; Waap v Alberta, 2008 ABQB 544 ; Wong v Voong, 2004 ABCA 216 ; Goudreau (Estate) v Gladue (Estate) , 2007 ABQB 291 ; Alberta Law Reform Institute Report No. 12: “Non-Pecuniary Damages in Wrongful Death Actions – a Review of

Section 8 of Fatal Accidents Act” (June 1992); Martin v Mineral Springs Hospital, 2001 ABQB 58 ; Alberta Law Reform Institute Report No. 66: “Non-Pecuniary Damages in Wrongful Death Actions – A Review of

Section 8 of the Fatal Accidents Act” (May 1993); Government of Alberta, Alberta Justice and Solicitor General: “Review of the Level of Damages Under

Section 8 of the Fatal Accidents Act” (Fall 2021); Baker v Poucette, 2016 ABQB 557 ; Jamie Bourne v N.T., V.A., Kelvin High School et al, 2020 MBQB 43 ; Morton-Paterson v College of Physicians and Surgeons of Alberta, 2007 ABQB 671 ; Richcrooks Enterprises

(2000) Ltd v Arres Capital Inc , 2018 ABQB 84 ; Gerlitz v Mawani, 2010 ABQB 249 . By the Court Ferraiuolo v Olson, 2004 ABCA 281 ; “ Personal Injury Damages in Canada ”, (3rd edition, 2018, Thomson Reuters) Cooper- Stephenson, E. Adjin-Tettey; McLaughlin v Broddy, 2006 ABQB 914 ; Jamie Bourne v NT, VA, Kelvin High School et al , 2020 MBQB 43 . Analysis [ 7 ] The law of wrongful death was thoughtfully reviewed by (then) Chief Justice Fraser in Ferraiuolo v Olson (at paras 15-68 ). The common law has barred claims predicated on the death of another person since the 19th century.

Legislation in the form of Survival of Actions Act and the Fatal Accidents Act have intervened to provide the only basis for claims of this nature. As such, the only claims recognized are dependancy claims that require the Court to assess the economic value of the deceased to the claimant, together with those losses set out in the Fatal Accidents Act . The only nonpecuniary (general) damages allowed in these circumstances are damages

for “grief, loss of guidance, care and companionship,” (Fatal Accidents Act, s 8) and, then, only in the amounts specified by the Act andthe Regulation (here $82,000.00) and, only to the eligible class of persons specified by the Act.

The only permitted pecuniary losses areset out in s 7 of the Fatal Accidents Act. [8] The applicants say that the added claims: 37 ... relate to addition of their claim for personal, psychological, psychiatric and emotional injuries suffered as a result of the events ofthe labour and delivery, the extent of Huxley’s medical challenges as a neonate and his death. [9] The parties were unable to find any cases in this jurisdiction permitting these claims.

Rowe Estate v Hanna, (1989) (AB KB), 71 Alta LR (2d) 136 at para 15 per Forsyth J, Baker v Poucette, 2016 ABQB 557 per Neufeld J at paras 201-205, Morton-Paterson v College of Physicians and Surgeons of Alberta, 2007 ABQB 671 (especially at para 6), per Nation J, andFerraiuolo do not assist the applicant and in fact support the position taken by the respondents by affirming the unavailability of theseheads of damages (see also Bourne v NT). [10] The applicant argues this is simply a negligence claim, framed in medical negligence.

The named individual plaintiff doesnot claim a personal injury cause of action on her own behalf[1]. [11] A Fatal Accidents Act claim requires proof of fault (‘a wrongful act, neglect or default’ s 2 Fatal Accidents Act) or a breachof contract (Personal Injury Damages in Canada at pages 899 et seq). It is the fact that the action is predicated on the death of anotherperson that limits the heads of damages available and circumscribes the cause of action.

It is like a negligence action in that fault has tobe proved, but the only remedy is statutory. [12] Personal, psychological, psychiatric and emotional injuries, loss of income, loss of earning capacity, cost of care, future costsand general (non-pecuniary) damages for pain, suffering and loss of enjoyment of life, are all heads of damages, not causes of action and,as I read Ferraiuolo, not available in this jurisdiction beyond what is allowed by statute. Whether this should be so is not for me to saybut claims of this nature remain stubbornly out of step with modern compensation law.

Limitations [13] I am going to assume for the purposes of this part that there is no legal impediment to any of the proposed amendments. Theclaim as it is now framed is a representative claim in relation to the death of the plaintiff’s son, Huxley. It is brought for the statutorybenefits on behalf of all of those entitled to recover under the Fatal Accidents Act (para 3). The relief now claimed in paragraphs 31, 32and 33 is for the benefits set out in the Act. Alicia and the Crown are the only plaintiffs.

The claim for recovery of the cost of healthservices falls under the Crown's Right of Recovery Act, SA 2009, c C-35. I acknowledge that Julia is a party to this action despite notbeing named in the style of cause (Golden). [14] The remedy sought in (in para 37) is a textbook claim for the benefits provided by the Act. There are no claims for the loss ofthe economic value of Huxley to the plaintiffs. [15] Notwithstanding that Julia is a party along with Alicia, they sue in their capacity as persons entitled to Fatal Accidents Act’sbenefits.

Alicia appears in a representative capacity in the lawsuit, claiming benefits on her own behalf and those others entitled to underthe Fatal Accidents Act. [16] The proposed amendments seek to change the plaintiffs’ capacity from beneficiaries (and Alicia's representative status) to addpersonal claims in their own right. [17] Sections 6(2) and (3) of the Limitations Act provide: 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 theadded claim if the requirements of subsection (2), (3) or (4) are satisfied.

(2) When the added claim (

a) is made by a defendant in the proceeding against a claimant in the proceeding, or (

b) does not add or substitute a claimant or a defendant, or change the capacity in which a claimant sues ora defendant is sued, the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding.

(3) When the added claim adds or substitutes a claimant, or changes the capacity in which a claimant sues, (

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

b) the defendant must have received, within the limitation period applicable to the added claim plus thetime provided by law for the service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced inmaintaining a defence to it on the merits, and (

c) the court must be satisfied that the added claim is necessary or desirable to ensure the effectiveenforcement of the claims originally asserted or intended to be asserted in the proceeding.

[ 18 ] The proposed amendments change the capacity in which these parties sue. As such, it takes the application out of s 6(2) and places it into s 6(3). Section 6(5) of the Act reminds us that the claimant has the burden of showing that the added claims are related and that they are necessary or desirable for the effective enforcement of the existing claims. The respondent has the burden of showing that they did not receive sufficient knowledge of the added claims such that their defence will be prejudiced.

The decided cases tell us that the emphasis is on notice not prejudice, McLaughlin v Broddy , 2006 ABQB 914 (per Wachowich AHJ). [ 19 ] There is no question that the proposed added claims relate to the original claim. The proposed added claims all stem from the personal, psychological, and emotional injury arising from Huxley's loss (proposed paragraph 32). This leads to an alleged loss of income, loss of earning capacity, cost of care and cost of future care.

This, in turn, leads to an economic loss described in proposed para 39(5); in the case of Alicia, quantified at $100,000.00, and, in the case of Julia, in proposed paragraphs 40(a)-(e), at $300,000.00. [ 20 ] Before this application was launched in the spring of 2021, the defendants received no notice of any of these claims. As indicated, it was initiated as a textbook action for Fatal Accidents Act benefits. [ 21 ] The only evidence in support of the proposed amendments is an affidavit sworn by Alicia together with Julia’s consent to the amendments endorsed on the proposed pleading.

Alicia was examined on her affidavit and a number of medical records pertaining to Julia were produced in response to undertakings given at her questioning on affidavit. [ 22 ] The applicants argue that Julia’s claim for emotional harm, beyond that allowed by the Fatal Accidents Act was first discovered in the spring of 2021 when she suffered a breakdown. As such, Julia argues that it was open to advance a claim for this new injury, under s 3(1)(

a) and 6(3)(

b) of the Limitations Act , provided that it could be shown that these added claims were necessary or desirable to ensure the effective enforcement of the claims originally asserted (6(3)(c)). Apart from preventing a multiplicity of proceedings, Julia’s proposed added claims are simply new claims unrelated to the effective enforcement of the claims originally asserted. [ 23 ] I have reviewed the medical evidence produced in Alicia’s examination on affidavit. I note that Julia’s breakdown is described as a major depressive event.

Apparently both Alicia and Julia received therapy and counseling following Huxley's death. I note also that Julia has not been formally diagnosed as having PTSD. The medical information describes a wide range of stressors that might have caused Julia’s breakdown; including the demands of two young children, a move from Edmonton to Toronto, the stress of studying for Royal College exams and a toxic workplace. There are other aspects of Julia’s history that may have acted as contributing events. [ 24 ] It is not in dispute that Julia suffered a breakdown in 2021.

Her new claim certainly fits within the definition of injury under the Limitations Act (s 1(e), (i), (iii)). However, the evidence showing a causal relation between the breakdown and Huxley’s passing is weak and equivocal. What it tells us is that Huxley's death may have been a factor in the breakdown, but it falls well short of showing that it was the cause.

Furthermore, the evidence does not demonstrate that this potential cause resulted in injury that was substantially different from psychological injury suffered from bereavement, for which the Fatal Accidents Act is designed to compensate. [ 25 ] Even if the proposed added claims were permitted by law, Alicia has not satisfied the notice requirement set out in s 6(3)(

b) of the Limitations Act , at least to the extent that these new damages are different from what is already claimed. I acknowledge that the evidentiary threshold for an amendment is low and only a modest degree of evidence is required ( Attila , para 26). Here the supporting evidence would have to go to causation, linking Huxley’s tragic death to the 2021 breakdown. It is not enough that it may have been a factor. A background event will not support a lawsuit. The evidence is equivocal, and the link is speculative.

Although my decision does not turn on this point, it is doubtful the evidence tendered meets the threshold. Finally, Julia’s claims for late-onset emotional harm, even if undiscoverable before 2021 also do not cross the threshold of being demonstrably different from the permitted (and existing) claims for grief: Baker at paras 198-203 . Disp osition [ 26 ] The application is dismissed. Heard on the 28 th day of July, 2023. Dated at the City of Edmonton, Alberta this 16 th day of August, 2023. W.S. Schlosser A.J.C.K.B.A. Appearances: Shelagh McGregor

Weir Bowen for the Plaintiffs Ania Werbeniuk Field Law LLP for the Defendants, Erin Kutz, Mary Sylla and Nicola Kenwell and Covenant Health owning and operating the Grey Nuns Community Hospital, William B. Hembroff Bennett Jones LLP for the Defendant, Jacqueline McCubbin