r v Alberta Association of Architects, 2016 MBCA 65

Citation: Wong v Grant Mitchell Law Corp et al, Date: 20160614 2016 MBCA 65 Docket: AI16-30-08530 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Mr. Justice Christopher J. Mainella BETWEEN: LEO KAI YEN WONG ) L. K. Y. Wong ) on his own behalf (Plaintiff) Appellant ) ) W. S.

Gange- and - ) for the Respondents ) GRANT MITCHELL LAW ) CORPORATION, CYNTHIA LAZAR, ) TAYLOR McCAFFREY LLP, ) BARRISTERS & SOLICITORS ) Appeal heard and ) Decision pronounced: (Defendants) Respondents ) June 14, 2016 On appeal from 2015 MBQB 146, 321 ManR (2d) 191 MAINELLA JA (for the Court): [1] The plaintiff appeals an order dismissing his motion to amend, set aside or vary a judgment, after it was signed, pursuant tothe Manitoba, Court of Queen’s Bench Rules, Man Reg 553/88, r 59.06.

In disposing of the motion, the judge stated that there is“nothing in Rule 59.06 which is of assistance to [the plaintiff], and for that reason, I consider myself functus officio” (at para 18). [2] In the judgment giving rise to the r 59.06 motion, the judge found the defendant lawyers negligent for failing to file amedical malpractice claim against a psychologist, who assessed the plaintiff in the context of a workplace dispute, prior to the expiry ofthe statutory limitation period.

He also found that the proposed action would not have been successful and, accordingly, awarded theplaintiff only nominal damages of $100 plus prejudgment interest. [3] The grounds for the plaintiff’s r 59.06 motion were two-fold.

He said that the judge erred in his assessment of the merit ofhis medical malpractice claim by failing to consider that he could prove damages on the theory that his mental breakdown was a result ofthe intervening cause of the psychologist not telling him that he suffered from a paranoid personality disorder, thereby leaving himuntreated and resulting in him being forced to retire early.

He also argued that his trial was unfair because the judge failed to providehim with adequate assistance as a self-represented litigant. [4] Generally speaking, in our system of civil justice, a judgment or order that has been formalized in accordance with the rulesof court cannot be re-opened because the law gives the responsibility for error correction exclusively to the Court of Appeal (Chandler vAlberta Association of Architects, (SCC), [1989] 2 SCR 848 at 860; Ridout v Ridout, 2004 MBCA 91, 187 ManR (2d)148).

Rule 59.06 sets out the narrow set of circumstances of when a trial judge or motion judge has discretion to potentially re-open aformalized judgment or order. Rule 59.06 states: Amending 59.06(1) An order that,

(

a) contains an error arising from an accidental slip or omission; or (

b) requires amendment in any particular on which the court did not adjudicate; may be amended on a motion in the proceeding. Setting aside or varying 59.06(2) A party who seeks to, (

a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made; (

b) suspend the operation of an order; (

c) carry an order into operation; or (

d) obtain relief other than that originally awarded; may make a motion in the proceeding for the relief claimed. [ 5 ] Rule 59.06 is not intended as a back door appeal of the merits of an unfavourable decision. In our view, the two allegations here of error by the judge are matters that can only be properly heard and determined in an appeal of the judgment to this Court, which has not been done.

Neither complaint falls within the circumscribed parameters of r 59.06, as each does not raise a drafting error relating to the form or content of the judgment in light of the judge’s reasons, an allegation of fraud or of facts arising or discovered after the judgment was made. [ 6 ] In the result, the appeal is dismissed with costs. JA JA JA