2014 MBCA 19, 2014 MBCA 19

Citation: Benson v. Workers’ Compensation Date: 20140204 Board (Man.) et al., 2014 MBCA 19 Docket: AI 13-30-08060 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Mr. Justice Christopher J. Mainella BETWEEN: ) B. Benson ) on his own behalfBRYAN BENSON ) ) L. K. Troup (Applicant) Appellant ) for the Respondent ) Workers Compensation ) Board of Manitoba- and - ) ) M. T. Green ) for the RespondentWORKERS COMPENSATION ) Concordia HospitalBOARD OF MANITOBA, ) CONCORDIA HOSPITAL, ) G. M. Fleetwood andDR. KRESS, DR. BAY and ) A. D. DomencoDR.

DOERMER ) for the Respondents ) Dr. Kress, Dr. Bay and (Respondents) Respondents ) Dr. Doermer ) ) Appeal heard and ) Decision pronounced: ) February 3, 2014 ) ) Written reasons: ) February 4, 2014 CHARTIER C.J.M. [1] The applicant appealed the application judge’s dismissal of his application to extend time under The Limitation ofActions Act, C.C.S.M., c. L150 (the Act) to sue each of the respondents. He also moved to adduce fresh evidence on appeal. At the endof the hearing, we denied the applicant’s motion for fresh evidence and dismissed the appeal, with brief reasons to follow.

These arethose reasons. [2] We see no basis to grant the applicant’s fresh-evidence motion, as the evidence proposed to be filed does not meet thetest for admission (see Palmer et al. v. The Queen, (SCC), [1980] 1 S.C.R. 759).

Specifically, the evidence could havebeen obtained for the application by the exercise of due diligence, and/or the proposed evidence is such that it would not have affectedthe result. [3] On the appeal proper, we are satisfied that the application judge, in his reasons, correctly stated the legal principles tobe applied and then reviewed at some length the evidence filed by way of affidavit. He understood the factual issues arising from theevidence.

He found that the applicant failed to comply with s. 15(2) of the Act, in that he had not been satisfied that the applicant had acause of action against any of the respondents which had a reasonable chance of success (see Justice v. Cairnie Estate et al. (1993), (MB CA), 88 Man.R. (2d) 43 at para. 9 (C.A.)). Key to his decision was his finding that the applicant had provided noevidence which showed that the respondent doctors had acted below the requisite standard expected of them.

[ 4 ] The language of s. 15(2) is clear. It places the burden on the applicant to bring before the court some evidence to support the extension application and to show that his proposed cause of action had a reasonable chance of success. In some medical negligence cases, negligence can be inferred from the facts of the case without the need for expert evidence. This was not one of those cases. [ 5 ] The respondents have raised a number of concerns about the application judge’s decision regarding some of his determinations, aside from the s. 15(2) question.

We make no comment on the correctness of any of the application judge’s findings, other than in relation to s. 15(2) . It is not necessary to address those concerns in this appeal. [ 6 ] In the end, the applicant has not demonstrated any error in principle by the application judge, or any palpable and overriding error with respect to the facts and the evidence referred to in his analysis of s. 15(2) of the Act . [ 7 ] The appeal is dismissed. With respect to costs, we note that, in the first instance, the application judge had stated that costs may be spoken to, if necessary.

On appeal, we note that none of the respondents’ facta indicated that they were requesting costs. We presume the same situation prevails on appeal. C.J.M. I agree: J.A. I agree: J.A.