Hunt v. Lee et al., 2012 MBCA 50

Citation: Hunt v. Lee et al., 2012 MBCA 50 Date: 20120518 Docket: AI 12-30-07725 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard BETWEEN : DARLENE HUNT, Administratrix of the ) G. T. Campbell and Estate of CLIFFORD BILL HUNT ) N. M. Watson Deceased, and DARLENE HUNT in her ) for the Appellant personal capacity ) ) R. L. Tapper, Q.C. and (Plaintiffs) Respondents ) K. L. Desjardine ) for the Respondents - and - ) ) M. T. Green JOHN JEE-YONG LEE ) for K. Wallis and ) The St.

Boniface (Defendant) Appellant ) General Hospital ) - and - ) ) Appeal heard and KRISTEN WALLIS also known as ) Decision pronounced: KRISTA WALLIS, and THE ) May 11, 2012 ST. BONIFACE GENERAL HOSPITAL ) ) Written reasons: (Defendants) ) May 18, 2012 BEARD J.A. 1 Despite the able arguments of counsel for the defendant Dr. Lee, the appeal was dismissed following the hearing, with brief reasons to follow. These are those reasons. 2 Dr.

Lee appealed the decision of the application judge granting the plaintiff (I refer to both plaintiffs in the singular) leave to amend the statement of claim under s. 14 of The Limitation of Actions Act , C.C.S.M., c. L150 (the Act ), by adding a new cause of action alleging that Dr. Lee was negligent in failing to perform a Maze surgical procedure on January 16, 2008, to treat the deceased’s atrial fibrillation. 3 The grounds of appeal raised by Dr. Lee are as follows: 1.

The application judge erred in law in relying on evidence and arguments that were not put in evidence, relied upon or referred to by counsel at the hearing before her, and the application judge erred in law in failing to afford Dr. Lee an opportunity to know the case he had to meet and to respond to evidence and arguments upon which she intended to rely, but which were not made at the hearing before her. 2. The application judge erred in law in her

interpretation of

Part II of the Act and its applicability to the facts of this case. 3. The application judge erred in failing to find that the plaintiff knew or ought to have known the material facts of a decisive nature within the limitation period and in finding that the plaintiff had taken all actions that a person of her intelligence, education and experience would reasonably have taken for the purpose of ascertaining the material facts of a decisive nature.

4. The application judge erred in finding that a written expert opinion was necessary for the plaintiff to have all material facts of a decisive nature. 5. If the application judge had the discretion to grant the within application, she erred in the exercise of that discretion. The Third and Fourth Grounds of Appeal 4 In her comprehensive reasons, the application judge reviewed at length the facts and the evidence.

She clearly understood the factual issues arising from the evidence. 5 Key to her decision regarding the fourth ground of appeal was her conclusion that “the plaintiff here could not have known, without a medical opinion, that in failing to do the Maze procedure, Dr. Lee fell below the expected standard of care” (at para. 68). She found that the plaintiff did not have that opinion until her counsel received Dr. Mathur’s draft report on May 31, 2010, in which he states and explains why Dr. Lee’s omission to perform the Maze surgical procedure fell below the standard of care.

This was a finding of fact for which the standard of review is that of palpable and overriding error. Dr. Lee has not satisfied us that the application judge committed any such error in her finding. 6 The application judge also clearly understood that the real issue to be decided regarding the third ground of appeal was whether the plaintiff took reasonable steps to acquire the medical opinion within the limitation period. On this point, Dr.

Lee raised two issues: - that the application judge erred in finding that the plaintiff was entitled to await the findings of the Critical Incident Review (the CIR) before she made a decision whether or not to sue; and - that the application judge erred in finding that the plaintiff’s counsel acted diligently and could not have ascertained the facts any earlier. 7 The application judge found that the plaintiff acted reasonably in waiting to receive the CIR report before taking steps to sue.

She stated (at para. 70): …. … [I]n my view it was perfectly reasonable for her to await the outcome of that review, which may have given her the facts to support a claim or may have satisfied her that her husband’s treatment was adequate and, as she hoped, “help her through the healing process”. 8 Regarding the plaintiff’s counsel, she concluded (at para. 77): In my view, the evidence offered by Mr. Somerleigh shows that he was diligent in pursuing the information he needed to support the plaintiff’s claim. He did what he could as quickly as possible to retain an appropriate expert.

This is simply not a case where counsel can be criticized for “dragging his heels”. 9 In the result, the application judge found that the plaintiff did not know, and ought not to have known, all of the material facts of a decisive nature on which to found a claim based on the failure to perform the Maze surgical procedure until after the expiration of the limitation period. She found that she had this information when she received Dr.

Mathur’s report on May 31, 2010, which was less than 12 months before she filed her application on October 9, 2010. 10 All of the application judge’s decisions on the above points relate to questions of fact or mixed fact and law, which are to be reviewed on the standard of palpable and overriding error. We are all of the view that Dr. Lee has neither demonstrated any error in principle by the application judge nor any palpable and overriding error with respect to the facts and the evidence referred to in this analysis.

The First and Second Grounds of Appeal 11 Having found that the application judge did not err in her finding on the third ground of appeal, being that the plaintiff did not know, and ought not to have known, all of the material facts of a decisive nature until after the expiration of the limitation period, it is not necessary to consider whether she erred in her

interpretation of s. 14 of the Act or in relying on evidence and arguments that were not raised before her. This is because the

interpretation of s. 14 is only relevant to this matter if there is or should be a finding that the plaintiff knew or ought to have known the material facts before the expiration of the limitation period. The Fifth Ground of Appeal 12 The fifth ground of appeal alleges that the application judge erred in exercising her discretion and granting the plaintiff’s application to extend the limitation period The objections are, again, that the plaintiff delayed the proceedings by waiting to hear the outcome of the CIR and that her counsel made errors and did not act diligently.

The application judge found that the plaintiff acted reasonably in making that decision and that her lawyer acted diligently, findings with which we can find no reversible error. 13 The application judge noted that Dr. Lee acknowledged that the new cause of action had a reasonable chance of success, with the result that the plaintiff met the criteria under s. 14 . We have not been convinced that her decision to exercise her discretion and allow the extension was wrong, let alone so clearly wrong as to amount to an injustice.

Disposition of the Appeal 14 The appeal is dismissed with costs. The Plaintiff’s Motion to Amend the Statement of Claim 15 The plaintiff filed a motion for an order from this court ordering that the statement of claim as against the defendants Wallis and the St. Boniface General Hospital be amended in accordance with the application judge’s decision, on the basis that that portion of her decision was not appealed. While this court may have jurisdiction to make such an order, that is a matter that is ordinarily dealt with by the master.

The plaintiff gave no reason, beyond that of convenience, to support her position that we should depart from the usual practice. Mr. Green, for Wallis and the St. Boniface General Hospital, was not in agreement with this court dealing with this matter. The motion was dismissed. _______________________ J.A. I agree: _______________________ J.A. I agree: _______________________ J.A.