JULIANNE BLOSKI Plaintiff - v. -, 2023 SKKB 68

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 68 Date: 2023 04 03 Docket: QBG-SA-01531-2016 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: JULIANNE BLOSKI Plaintiff - and - SHRAVANKUMAR SATYADEV NOSIB, STEPHEN BRYAN PYLYCHUK, UNIVERSITY OF SASKATCHEWAN, TANYS MAIER, KATIE HRYHORIW and SASKATOON REGIONAL HEALTH AUTHORITY Defendants - and - WESSEL BADENHORST HAMMAN Proposed Defendant Counsel: Reginald A. Watson, K.C., and Jessica M. Figley for the plaintiff/applicant Jenna L.

Sambrook for the proposed defendant/respondent ___________________________________________________________________________ FIAT ROTHERY J. April 3, 2023 ___________________________________________________________________________ Background [ 1 ] On November 10, 2016, the plaintiff, Julianne Bloski [Bloski], sued Dr. Nosib, Dr. Pylychuk and the Saskatoon Regional Health Authority, collectively [defendants], for negligence in the care of her late husband, Perry Bloski [Perry], on November 29, 2014. Perry attended at the Emergency Department of Saskatoon City Hospital at 11:07 a.m. on that day because of chest pain.

The proposed defendant, Dr. Wessell Hamman [Dr. Hamman], examined Perry, and in mid-afternoon, Dr. Hamman arranged for Perry’s transfer to the Cardiology Department of Royal University Hospital. Perry died later that evening at Royal University Hospital. [ 2 ] Although Dr. Hamman was referred to in the statement of claim, he was never sued by Bloski. That action proceeded for some years, and on November 5, 2019, Bloski’s counsel received an expert opinion regarding the standard of care required of Dr. Nosib and Dr. Pylychuk. Within the same expert report, the writer gave the opinion that Dr.

Hamman did not meet the standard of care for an emergency physician. [ 3 ] As a result of this expert opinion, Bloski’s counsel commenced a separate lawsuit against Dr. Hamman. It was issued November 4, 2021, and alleged the same transactions and damages as in this lawsuit. That action is KBG-SA-01130-2022, having being transferred to the Judicial Centre of Saskatoon from the Judicial Centre of Regina at the request of Bloski’s counsel (previously QBG-RG-02339-2021). That statement of claim [Separate Action] was served on Dr. Hamman on March 19, 2022. [ 4 ] Dr.

Hamman’s counsel filed a statement of defence to that Separate Action on May 20, 2022, denying liability and claiming that the action is barred by the applicable limitation periods. Dr. Hamman’s counsel then filed an application on December 21, 2022, returnable January 12, 2023 (later amended to January 24, 2023), seeking an order pursuant to Rule 7-9 of The Queen’s Bench Rules that the Separate Action against Dr.

Hamman be struck for being frivolous and constituting an abuse of the Court. [ 5 ] Bloski’s counsel then filed an application in this action on January 11, 2023, returnable January 24, 2023, seeking an order allowing Dr. Hamman to be added as a defendant and this statement of claim to be amended in accordance with a draft amended statement of claim. Bloski’s counsel relies on the provisions of s. 20 of The Limitations Act , SS 2004, c L-16.1 , to claim such relief.

[6] The application by Dr. Hamman’s counsel in the Separate Action to strike the claim and this application toadd Dr. Hamman as a defendant came before the Court on February 16, 2023. Both counsel agreed that Dr. Hamman’s application tostrike the claim in the Separate Action would be adjourned pending the outcome of this application pursuant to s. 20 of The LimitationsAct. The Legislation [7]

Section 20 of The Limitations Act states: 20 Notwithstanding the expiry of a limitation period after the commencement of a proceeding, a judge may allow an amendment to thepleadings that asserts a new claim or adds or substitutes parties if: (

a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the originalclaim; and (

b) the judge is satisfied that no party will suffer actual prejudice as a result of the amendment. The Law [8] The origin and purpose of s. 20 of The Limitations Act was reviewed in Polsfut v Sembalerus, 2018 SKQB 137at paras 12-15, where I stated, in part: [12] As a starting point, it is important to remember the purpose of The Limitations Act. It is succinctly stated by Richards J.A. (as hethen was) in Cameco Corp. v Insurance Co. of the State of Pennsylvania, 2008 SKCA 54, [2008] 6 WWR 626 [Cameco], at paragraphs27 to 30: [27]

Section 20 of The Limitations Act operates to provide exceptions to the normal consequences which flow from the expiration of alimitation period. Accordingly, in order to give it proper consideration, it is useful to underline the purposes of limitations legislation.LaForest J. described those purposes as follows in M. (K.) v. M. (H.), (SCC), [1992] 3 S.C.R. 6 at pp. 29-30: … In order to determine the time of accrual of the cause of action in a manner consistent with the purposes of the Limitations Act, Ibelieve it is helpful to first examine its underlying rationales.

There are three, and they may be described as the certainty, evidentiary,and diligence rationales… Statutes of limitations have long been said to be statutes of repose; see Doe on the demise of Count Duroure v. Jones (1791), 4 T.R.301, 100 E.R. 1031, and A’Court v. Cross (1825), 3 Bing. 329, 130 E.R. 540. The reasoning is straightforward enough. There comes atime, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancientobligations… The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence.

Once the limitation periodhas lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim… Finally, plaintiffs are expected to act diligently and not “sleep on their rights”; statutes of limitation are an incentive for plaintiffs tobring suit in a timely fashion. [28] Notwithstanding these important objectives, the other side of the coin is that the operation of limitation periods can have harshconsequences for plaintiffs caught by them.

Section 20 of The Limitations Act is intended to ameliorate some of that harshness. But, asTallis J.A. suggested in Fillion v. Wolverine et al., 2001 SKCA 30, (2001) 203 Sask. R. 288 at para 13, provisions like s. 20 mustnonetheless be read in context. They provide for exceptions to limitation periods but should not be allowed to become a means for theirwholesale avoidance. … [13] Cameco clarifies that the factors to be considered under s. 20 of The Limitations Act are the same as under its predecessor, s. 30of The Queen’s Bench Act, 1998, SS 1998, c Q-1.01.

Prior to that, ss. 44(11) of The Queen’s Bench Act, RSS 1978, c Q-1 (rep), governedlimitation periods. Subsection 44(11) was amended on July 1, 1983 (am 1980-81, c 75, s 5; re-en 1983, c 59, s 5(1)), to reflect thediscretionary powers of the Court in considering amendments after the expiry of limitation periods. Subsection 44(11) stated: 11 Notwithstanding that a limitation period has expired since the commencement of an action, the court may allow an amendment tothe pleadings: (

a) asserting a new claim; or (

b) adding or substituting parties; provided that the claim asserted by the amendment, or by or against the new party, arose out of the same transaction or occurrence as theoriginal claim and the court is satisfied that no party will suffer actual prejudice as a result of the amendment; [14] This amended ss. 44(11) of The Queen’s Bench Act was considered by the Saskatchewan Court of Appeal in Stockbrugger(Estate) v Wolfe (Estate), (SK CA), [1987] 4 WWR 759 [Stockbrugger].

Bayda C.J.S. explained that the list of specialcircumstances which must exist to assist a judge in exercising the restricted discretion in granting an amendment or adding orsubstituting parties beyond the limitation period, as described in Walbaum v G & R Trucking Ltd. (1983), (SK CA),144 DLR (3d) 636 (Sask CA), was no longer required under the amended ss 44(11). [15] At page 762 of Stockbrugger, Bayda C.J.S. stated:

The effect of this new enactment upon the Walbaum approach was considerable. Now, after the expiration of a limitation period, anapplicant for an order to amend pleadings involving an addition or substitution of parties, no longer has to show “special” circumstancesas contemplated by Walbaum. The new onus on the applicant is: 1. to show that the claim asserted by the amendment or by or against the new party arose out of the same transaction or occurrence as theoriginal claim; 2. to satisfy the court that no party will suffer “actual prejudice” as a result of the enactment.

This twofold threshold onus is much lower than the “special” circumstances onus under Walbaum. To be sure, to succeed underWalbaum an applicant had to meet the same two criteria that now constitute the twofold threshold onus, but he had to show more for thejudge to exercise his restricted discretion in his (the applicant’

s) favour. Unlike the judge acting under the Walbaum criteria, the judgeunder the new enactment has an unfettered discretion to grant the application once the twofold threshold onus is met. He is constrainedby only one rule: he must exercise that unfettered discretion judicially. ... [Emphasis added] [Emphasis in original] Also see: Josvanger v Folk, 2005 SKCA 138, 275 Sask R 101 [Josvanger]. The Issue [9] The issue in this application is whether the Court may grant the amendment to add Dr. Hamman as adefendant. To exercise that judicial discretion, I must first conclude the claim against Dr.

Hamman arises out of the same transaction, andI must be satisfied that no party will suffer actual prejudice as a result of this amendment. Dr. Hamman’s counsel concedes that the firstpre-condition, that is, the claim against Dr. Hamman arises out of the same transaction as in the statement of claim filed against thedefendants, has been met. [10] However, Dr.

Hamman’s counsel submits that he will suffer actual prejudice if the plaintiff is permitted to addhim as a defendant. [11] “Actual prejudice” has been defined in Stomp Pork Farm Ltd. v Lombard General Insurance Company ofCanada, 2008 SKQB 405 at para 67, [2009] 4 WWR 483, leave to appeal to Sask CA refused, 2008 SKCA 146, [2009] 4 WWR 505: [67] I agree with the dicta in 287993 B.C. Limited v.

Nanaimo (Regional District), [2006 BCSC 1231] … : [24] Prejudice in the context of this matter, means prejudice associated with the delay itself which affects the ability of the opposingparty to respond to the amended claim: Bel Mar Developments Inc. v. North Shore Credit Union, 2001 BCSC 388 at para. 9, citingChiarelli v. Wiens, (ON C.A.), (2000), 46 O.R. (3d) 780, 43 C.P.C. (4th) 19 (C.A.). Also see: Arslan v Şekerbank T.A. Ş., 2018 SKCA 77 at paras 76-77, 38 CPC (8th) 311. The Facts [12] In support of the application to add Dr.

Hamman as a defendant, Bloski filed an affidavit sworn January 10,2023, which states in part: 4. Questioning for the Nosib Action occurred from January 8, 2018 – January 9, 2018. 5. Following the questioning, I, through my counsel, proceeded to retain an expert witness to opine on the standard of care of theDefendant Physicians in the Nosib Action. 6. To my surprise, the expert opinion, in addition to providing a standard of care opinion on the Defendant Physicians in the NosibAction, also commented on the actions and standard of care of Dr. Wessell Badenhorst Hamman (“Dr.

Hamman”), an emergency roomphysician who first attended to Perry Bloski (“Perry”) at the Saskatoon City Hospital before Perry was transferred to the RoyalUniversity Hospital for care and treatment by the Defendant Physicians in the Nosib Action. This expert report is attached as Tab “A” tothis my Affidavit. 7. I am instructed by my counsel, and do verily believe that following receipt of the expert opinion referred to above, my counselreceived a letter from counsel for the Defendant Physicians in the Nosib Action inquiring as to why Dr.

Hamman was not included as aDefendant in the Nosib Action. 8 Following this, I instructed my counsel to commence an action against Dr. Hamman. The action against Dr. Hamman,QBG-RG-02339-2021 (the “Dr. Hamman Action”) was issued in Regina on November 4, 2021. 9. The Dr. Hamman Action, although originally issued in the Judicial Centre of Regina, was transferred to Saskatoon in December of2022, now KBG-SA-01130-2022. [13] Bloski filed a supplementary affidavit sworn January 20, 2023, which includes the following: 5.

To elaborate on paragraph 7 of my previous Affidavit dated January 10, 2023, the letter received by my counsel, from counsel forDr. Nosib dated February 5, 2020 (Tab

B) stated: II. Expert Opinions In relation to the expert opinions served, we wish to raise a couple of matters for further discussion.

While she opined on a variety of other issues, Dr. Colleen Carey’s opinion is stated to provide “…an expert opinion as to whether the care provided met the Standard of Care for the emergency physicians involved in this case.” No ER physicians are defendants in this action; therefore, it is unclear to us why this opinion was provided. Please advise of the purpose for which Dr. Carey’s opinion is being proffered and the portions of it on which the Plaintiff intends to rely at trial. … [ 14 ] Dr.

Hamman filed an affidavit sworn February 9, 2023, explaining the actual prejudice he would suffer if he were added as a defendant to this action. His affidavit states, in part: Personal Notes 14. Approximately two weeks after the death or [ sic ] Mr. Bloski, the Canadian Medical Protective Association asked me to make a personal record of the events that occurred in relation to the care of Mr. Bloski. As a result, in or around December 2014, I made several pages of personal, handwritten notes detailing my involvement in the care of Mr. Bloski. 15. I have reviewed the medical documents related to Mr.

Bloski’s file. My personal notes contained further details that are not found in the existing medical documentation. 16. My personal notes described my recollections and thought process regarding the care I provided to Mr. Bloski, which included details of the following:

a) My observations of Mr. Bloski and the details of his presentation upon arriving at the City Hospital;

b) My considerations and thought process for conducting the care of Mr. Bloski in the manner that I did;

c) My though process behind the tests I ordered for Mr. Bloski;

d) Details of my phone calls to other specialists, which include Dr. Nosib and Dr. Norwal (radiologist), including the number of times I called and requested to speak to the cardiology department, and the contents of those conversations;

e) Details of my communications regarding the urgent nature of the transfer of Mr. Bloski to Dr. Nosib, and to the Royal University Hospital, including the number of times I requested an update on transfer [and] inquired about the delay in transfer;

f) Details of my efforts and actions involved in trying to expedite transfer of Mr. Bloski to the Royal University Hospital as quickly as possible;

g) Details of my conversations with nurses involved in Mr. Bloski’s care, including communications of my concern in the delay in transfer and later expediting transfer to the Royal University Hospital; and

h) Details of my conversations with Mr. Bloski and his wife during his stay at the City Hospital Emergency Room, prior to his transfer. 17. In or around the end of February 2022, I was cleaning my office to prepare for an office move and I came across the handwritten notes that I had made in 2014 shortly after the death of Mr. Bloski. 18. While I was packing up my office I disposed of many old files that no longer required storage. Among these files included Mr. Bloski’s file and the notes I prepared in 2014 in relation to the care of Mr. Bloski. I disposed of these notes in or around February 2022.

At this time, I had not received any indication that I would be a part of any legal proceedings in regards to the death of Mr. Bloski, and I did not know that any legal proceedings had commenced in regards to the death of Mr. Bloski. Further, in or around early 2015, I had received letters from the College of Physicians and Surgeons and Saskatoon Regional Health Authority indicating that I was not implicated in the incidents relating to Mr. Bloski’s death. 19. By the time I was served with the Second Claim and received notification of legal action in regards to Mr.

Bloski’s death, my personal notes in relation to the care of Mr. Bloski were gone. Had I known about any legal action in regards to Mr. Bloski, I would not have destroyed my notes. 20. I do not recall the details of the care I provided to Mr. Bloski now in as great of detail given the length of time that has passed since Mr. Bloski’s death. 21. I have reviewed the expert report attached as Exhibit “A” to Julianne Bloski’s Affidavit sworn January 10, 2023, and the proposed second amended statement of claim that contain the particular allegations of negligence in regards to my care.

My handwritten notes would have been imperative in responding to the specific allegations of negligence as I would have been able to refresh my memory and fill in the gaps in information in the existing medical documents. [ 15 ] In the plaintiff’s draft amendment to the statement of claim, the following particulars are pleaded at paragraphs 26.1 and 26.2: 26.1 The particulars of the negligence of Dr. Hamman are as follows: (

g) he failed to take those steps necessary to manage the care of his patient; (

h) he failed to provide adequate care; (

i) he failed to appropriately diagnose or treat Perry Bloski’s medical condition including confirming the diagnosis of aortic dilation or treating this medical condition;

(

j) he failed to follow the differential diagnosis protocol and rule out aortic dissection; (

k) he failed to order a CT Arteriogram or CT Angiography on a stat basis or at all; (

l) he failed to conduct a CT scan of the aorta; (

m) he failed to conduct repeated ECGs; (

n) he failed to recognize the time sensitive nature and urgency of Perry Bloski’s condition and take appropriate immediate actions for intervention or transfer; (

o) he failed to communicate the urgency of the patient’s condition with staff at the Royal University Hospital; and (

p) he failed to oversee an immediate STAT transfer of Perry Bloski to the Royal University Hospital and to ensure that his acutely ill patient had been properly handed off to the receiving physicians at the RUH in a timely way. 26.2 The particulars of Dr. Hamman’s default were not known to the Plaintiff until November 5, 2019. [ 16 ] It is clear that Dr. Hamman’s notes would have been of considerable benefit to him in responding to these specific allegations of negligence. The medical records already disclosed in the action are insufficient as they would not contain the detail that Dr.

Hamman set out in his handwritten notes a few weeks after Perry’s death. [ 17 ] The destruction of those notes has been explained. Dr. Hamman had no idea he was being sued by the plaintiff. The Separate Action was commenced one day short of the two-year limitation period of when plaintiff’s counsel received the expert opinion implicating Dr. Hamman. And that claim was not even served on Dr. Hamman until March 19, 2022, over four months after that claim was issued against him. [ 18 ] I must conclude that Bloski has failed to satisfy the Court that Dr.

Hamman will not suffer actual prejudice as a result of being added as a defendant. That being the situation, Bloski’s application must be dismissed. [ 19 ] If I had not concluded that Dr. Hamman would suffer actual prejudice by being added as a defendant, I would have exercised my judicial discretion in denying Bloski’s application at any rate. Bloski’s counsel was aware of a potential claim against Dr. Hamman when he received the expert report opining as to Dr. Hamman’s negligence as the emergency room doctor.

That was November 5, 2019, already almost five years after Perry’s death. [ 20 ] As evidenced by Bloski’s own affidavit, the issue of Dr. Hamman’s potential liability was already a live issue and a subject of correspondence between Bloski’s counsel and counsel for the other defendants. Counsel exchanged correspondence in February 2020, a few months after receipt of the expert opinion. [ 21 ] By November 4, 2021, another two years had gone by without any notice to Dr. Hamman of his potential liability. And Dr.

Hamman continued to remain in the dark for another four months until he was served with the claim in the Separate Action. This delay can be described as inexcusable. It is a factor that “militates against” granting the application. See: Josvanger , at paras 17-19 . Conclusion [ 22 ] Bloski’s application is dismissed. She has failed to prove that Dr. Hamman will not suffer actual prejudice as a result of the amendment sought. Furthermore, this is a situation that requires the exercise of my judicial discretion to refuse the application. [ 23 ] Dr. Hamman is granted costs of this application in accordance with

Schedule I “B”, Column 2. “A.R. Rothery” J. A.R. ROTHERY