2019 MBCA 115, 2019 MBCA 115

Citation: Lantin et al v Seven Oaks General Hospital, Date: 20191106 2019 MBCA 115 Docket: AI19-30-09233 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : jocelyn lantin, as l itigation Guardian ) for alexander lantin ) M. T. Green ) for the Appellant (Plaintiff) Respondent ) ) - and - ) R. M.

Beamish ) for the Respondent seven oaks general hospital ) ) (Defendant) Appellant ) Appeal heard: ) September 6, 2019 - and - ) ) REX SOKOLIES ) Judgment delivered: ) November 6, 2019 (Defendant) ) On appeal from 2018 MBQB 160 mainella JA [ 1 ] This appeal is about the limits of the “slip rule”, the extraordinary power to amend an order or judgment after it has been formally entered. [ 2 ] The appeal arises from the aftermath of a prior decision of this Court (see Lantin et al v Seven Oaks General Hospital , 2018 MBCA 57 ( Lantin CA )) where the defendant hospital’s appeal was allowed and an award of damages was varied. [ 3 ] After this Court’s judgment was entered, the judge made an order amending the judgment she had granted, which was the subject of the prior appeal, because of an accidental slip or omission not to make an allowance for loss of opportunity to invest the non-pecuniary damages. [ 4 ] The wording of the relevant rules of the Manitoba, Court of Queen's Bench Rules , Man Reg 553/88 (the QBR ), is as follows:

DEFINITIONS 1.03 In these rules, unless the context requires otherwise, “judgment” means a decision that finally disposes of all or part of an application or action on its merits or by consent of the parties, and includes a judgment in consequence of the default of a party; 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. [ 5 ] The effect of the amendment was to increase the non-pecuniary damages by almost 25 per cent. [ 6 ] In this appeal, the hospital argues there is a need for finality in litigation.

It says “there is simply no legal basis which justifies the learned judge’s decision to intervene in this matter at this late date.” The plaintiff replies by saying that the amendment was appropriate under the slip rule to correct an error of law and to conform to the judge’s original intention. [ 7 ] For the following reasons, I would allow the hospital’s appeal. Background The Trial and the Original Appeal [ 8 ] Damages of $1,539,145.51 were awarded after a trial (see Lantin et al v Sokolies et al , 2017 MBQB 40 ).

The breakdown was $175,000 in non-pecuniary damages for pain and suffering; $1,300,000 in damages for loss of earning capacity; and the subrogated claim of Manitoba Health of $64,145.51. [ 9 ] In his closing submission, counsel for the plaintiff requested that allowance be made for the loss of opportunity to invest the non-pecuniary damages. The judge did not make specific comment on the loss of opportunity to invest the non-pecuniary damages in her reasons, nor was an amount for such loss separately fixed in the judgment that counsel for the plaintiff drafted. By virtue of r 1.04.1(

b) of the QBR , the judgment was deemed to be entered on the date it was signed by the judge, May 18, 2017. [ 10 ] Sections 80(3) - (4) of The Court of Queen’s Bench Act , CCSM c C280 (the QB Act ) address non-pecuniary damages: Non-pecuniary damages 80(3) The court shall not make an award of interest on non-pecuniary damages but in determining the amount of the non-pecuniary damages, a judge shall make allowance for the loss of opportunity for the successful party to invest the amount of the damages.

Relevant circumstances 80(4) For purposes of subsection (3), a judge shall have regard to such considerations as the judge considers relevant, including the prejudgment rate from the date of the notice under clause (1)(

b) to the date of the order awarding the damages. [ 11 ] In the original appeal, this Court reduced the damages for loss of earning capacity by $775,000 because the judge “failed to make any allowance for contingencies in her analysis of the plaintiff’s loss of earning capacity, with the result that the award for that loss was inordinately high” ( Lantin CA at para 2 ). In terms of the non-pecuniary damages, we did not accede to the hospital’s request for a reduction to $80,000.

We concluded that, in light of “counsel’s submissions and the awards made in other cases” (at para 79), the amount of non-pecuniary damages should not be changed. [ 12 ] A certificate of decision was signed by the Court of Appeal’s deputy registrar on June 19, 2018. It read, in part, “The Appeal be allowed and that the plaintiffs recover judgment against the defendant Seven Oaks General Hospital for the sum of $764,145.51.” Once the certificate of decision was signed, the judgment of this Court was entered and finally disposed of the negligence action against the hospital on its merits.

The Slip as to Calculation of Non-Pecuniary Damages [ 13 ] In the approximately one month between when this Court pronounced its decision and the certificate of decision was signed, counsel for the plaintiff raised with counsel for the hospital, for the first time, the claim that section 80(3) of the QB Act mandated that the award for non-pecuniary damages be adjusted upward by three per cent per annum to compensate for the loss of opportunity to invest those damages. [ 14 ] On June 13, 2018, counsel for the plaintiff advised counsel for the hospital that he would write to the judge about the situation, bring a motion to amend the judgment and file “a Notice of Appeal in order to protect [his] position.” In the week before the certificate of decision was signed, both counsel wrote to the judge about the controversy.

The letters contained legal submissions on a contentious point in the absence of any motion or other process. The proper procedure should have been for an appointment to have been arranged with the judge in order to deal with the matter formally. [ 15 ] The judge wrote back to counsel on June 29, 2018. She advised that, “through an oversight, an award of loss of opportunity to invest general damages had not specifically been included, as was required under the [ QB ] Act , although that had been the

court’s clear intention” (at para 7). She acknowledged the hospital’s position that she had no jurisdiction given the decision of the Courtof Appeal and that she was functus officio. She said she was prepared to have counsel attend before her to make submissions.

In herletter, she referred counsel to the decision of Melnychuk v Moore, 1989 CarswellMan 185 (CA). [16] In Melnychuk, Twaddle JA suggested, in applying the similarly worded legislation that preceded section 80(3) of theQB Act, that, for reasons of transparency, a trial judge should separately fix the amount for the loss of opportunity to invest non-pecuniary damages and that the rate of three per cent was reasonable to compensate for the loss of opportunity to invest although henoted that presumptive rate was not “prescribed”, may “not be entirely accurate” and, therefore, was “rebuttable” (at para 50). [17] It is unnecessary to decide the correctness of the judge’s conclusion that the plaintiff was “entitled at law” (i.e., section80(3) of the QB Act) (at para 17) to a three per cent rate for loss of opportunity to invest the non-pecuniary damages.

The decision inMelnychuk has been interpreted in other cases (see Kobs v Merchants Hotel, 1990 CarswellMan 111 at para 20 (CA); and Laufer vBucklaschuk (1999), (MB CA), 181 DLR (4th) 83 at para 122 (Man CA)). Section 80(3) of the QB Act must be readin conjunction with section 80(4) and applied reasonably in light of all the relevant circumstances. [18] The plaintiff did not move for a rehearing of the appeal based on r 46.2 of the Manitoba, Court of Appeal Rules, ManReg 555/88R (the CAR), before this Court’s judgment was entered.

The plaintiff did not attempt to exercise any other appellate rightsdespite counsel’s stated intention to do so. The Judge’s Decision [19] In granting the order, the judge stated, “The question here is whether the fact that an appeal and a determination by theCourt of Appeal makes any difference to the application of the ‘slip rule’ in the circumstances of this case. In my view, it does not” (atpara 16).

She said rectifying the slip so that the judgment conformed to section 80(3) of the QB Act and her original intention was “nottantamount to interfering with the decision of the Court of Appeal, nor does it constitute a new ruling” (at para 18). [20] The amendment to the judgment added $43,682.88 to the award for non-pecuniary damages based on the application ofthe three per cent rate for the approximately eight-year period between when the action was commenced and the judgment was signed. Discussion The Standard of Review [21] A decision to amend an order under r 59.06(1) of the QBR is discretionary.

The standard of review was discussed inPenner v Niagara (Regional Police Services Board), 2013 SCC 19 (at para 27): A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearlywrong that it amounts to an injustice: Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367, at p. 1375. Reversing a lowercourt’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Friends of the Oldman River Society v.

Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3, at pp. 76-77. (See also Perth Services Ltd v Quinton et al, 2009 MBCA 81 at paras 24-28.) The Slip Rule [22] Formal entry of an order or judgment is a watershed moment in litigation. Once an order or judgment is drawn up andformally entered, the court or judge who pronounced it has no jurisdiction to amend it absent a recognised power to do so (see The HonMr Justice KR Handley, Spencer Bower and Handley: Res Judicata, 4th ed by Andrew Grubb (London, UK: LexisNexis, 2009) at para5.03).

As a general rule, formal entry of an order or judgment triggers the common law doctrine of functus officio (see Donald J Lange,The Doctrine of Res Judicata in Canada, 4th ed (Markham: LexisNexis, 2015) at 489-90; Linda S Abrams & Kevin P McGuinness,Canadian Civil Procedure Law, 2nd ed (Markham: LexisNexis, 2010) at paras 16.374-16.375; and Harrison v Harrison, 2007 BCCA120 at para 29). [23] This rule of finality is derived from the intention of the Legislature for appellate jurisdiction to be with the Court ofAppeal exclusively which, in Manitoba, is reflected by the operation of

section 89 of the QB Act and sections 25-29 of The Court ofAppeal Act, CCSM c C240 (the CA Act) (see In re St Nazaire Company, [1879] 12 Ch D 88 at 96-97 (CA (Eng)); Paper Machinery Ltdet al v JO Ross Engineering Corp et al, (SCC), [1934] SCR 186 at 188; Chandler v Alberta Association of Architects, (SCC), [1989] 2 SCR 848 at 860; and Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at paras77-79). [24] While accidental slips and oversights may be corrected under the slip rule, deliberate decisions and afterthoughts cannotbe corrected under that rule.

The slip rule is not an alternative procedure to correct substantive errors in fact or law; the proper remedy isan appeal (see Abromovich v Snow Lake (Town), 1996 CarswellMan 558 at para 4 (CA); and Wong v Grant Mitchell Law Corp et al,2016 MBCA 65 at paras 4-5, leave to appeal to SCC refused, 37227 (9 February 2017)). [25] The ambit of the slip rule is defined by a court’s inherent jurisdiction, the rules of court and legislation.

Courts haveinherent jurisdiction to amend a formally entered order or judgment “[w]here there has been a slip in drawing it up, or . . . [w]here therehas been error in expressing the manifest intention of the court” (Paper Machinery Ltd at p 188; see also Prevost v Bedard (1915), (SCC), 51 SCR 629 at 635). Rule 59.06(1) (and r 70.34(1) for family proceedings) of the QBR broaden the ambit of the sliprule further than the Court’s inherent jurisdiction.

Legislation may allow for amendment in a particular context (which is not thesituation here). [26] Professor Tarrant explains the procedure in relation to the slip rule in the following fashion: “When it is desired to havea judgment or order amended under the slip rule the application must be made to the same court that made the order unless that court has

ceased to exist” (John Tarrant, Amending Final Judgments and Orders (Sydney, Austl: The Federation Press, 2010) at 150; see alsoHandley at para 5.03). [27] In my view, the issue here is not whether the judge erred in determining that failing to make allowance for loss ofopportunity to invest non-pecuniary damages was an oversight that fell within the ambit of the slip rule. This is not the appropriate caseto chart the fine line between an oversight and an afterthought.

Rather, the true question on this appeal is the correctness of the judge’sconclusion that this Court’s prior determination on the hospital’s appeal made no difference to her ability to apply the slip rule. The Legal Effect of the Hospital’s Successful Appeal [28] The order appealed from says the judge amended “the judgment signed on May 18, 2017”. Regrettably, the judgeaccepted the plaintiff’s submission that there were two judgments in effect: the one she signed on May 18, 2017 and the one given bythis Court as certified on June 19, 2018.

In my respectful view, that was an error in law. [29] Section 26(1) of the CA Act and r 40(1) of the CAR read as follows: Court may pronounce proper judgment 26(1) The court, upon an appeal, may give any judgment which ought to have been pronounced, and may make such further or otherorder as is deemed just. Certificate of decision 40(1) The decision of the court shall be certified by the registrar in Form 2 of

Schedule A to the proper officer of the court appealedfrom who shall make all proper and necessary entries of the decision, and all subsequent proceedings may be taken as if the judgmenthad been given or pronounced in the court appealed from. [30] Handley JA describes the legal effect of a successful appeal this way: “When an appellate court reverses the judgmentbelow, the former decision, until then conclusive, is avoided ab initio and replaced by the appellate decision, which becomes the resjudicata between the parties” (Handley at para 2.33). [31] The idea of two judgments existing at the same time for the same parties on the same cause of action is both illogicaland contrary to the law.

The correct statement of principle is set out as follows in WB Williston & RJ Rolls, The Law of CivilProcedure (Toronto: Butterworths, 1970), vol 2 at 1022: “More than one final judgment may be given in an action or proceeding ifseveral causes of action or issues are decided at different times, but if there is only one cause of action only one judgment can be given.” [32] In allowing the hospital’s appeal, this Court exercised its appellate jurisdiction and gave the judgment “which ought tohave been pronounced” on the negligence action (section 26(1) of the CA Act).

Any subsequent proceedings to be taken would be on thatjudgment as if it had been given by the Court of Queen’s Bench (see r 40(1) of the CAR). By operation of law, the only judgment thatwas in effect between the parties for the hospital’s negligence when the QBR r 59.06(1) motion was filed on August 21, 2018 was theone given by this Court in favour of the plaintiff for the sum of $764,145.51.

Common Law Doctrines Against Relitigation of Issues [33] Several common law doctrines against relitigation of issues decided in a previous judicial proceeding were raised in thecourse of this appeal (see Toronto (City) v CUPE, Local 79, 2003 SCC 63 at para 15; and Virgin Atlantic Airways Ltd v Zodiac Seats UKLtd, [2013] UKSC 46 at para 17). However, given the judge’s error in relying on the slip rule to amend a judgment, which had ceased tobe in effect by operation of law, it is unnecessary to discuss whether any of those common law doctrines would be applicable.

Conclusion [34] In my respectful view, the slip rule was not available to the judge here as the judgment in effect had been given by adifferent and higher level of court having exercised its appellate jurisdiction under section 26(1) of the CA Act to substitute its ownjudgment. [35] The unusual path of this litigation illustrates the importance of the comments made in Danyluk v AinsworthTechnologies Inc, 2001 SCC 44, that a litigant has an entitlement to only “one bite at the cherry” (at para 18); thereafter, other interests,such as finality, come into play.

It is well settled that damages resulting from a discrete cause of action should be assessed andrecovered once for all at the trial (subject to modification on appeal) (see The City of Montreal v McGee (1900), (SCC),30 SCR 582 at 589; and Krangle (Guardian ad litem of) v Brisco, 2002 SCC 9 at para 21). This is in keeping with the legislativedirection applicable to all civil litigation that, “As far as possible, a multiplicity of proceedings shall be avoided” (section 94 of the QBAct). [36] Adjusting damages for inflation and lost opportunity is a routine part of civil litigation.

Counsel are expected to raiseall relevant arguments at the first assessment. Here, the plaintiff was represented by experienced counsel, had a fair trial and appeal, andultimately received a large award of damages for the unfortunate losses caused by the hospital’s negligence. [37] There is no ambiguity about the meaning or application of section 80(3) of the QB Act. That

section directs that theCourt shall not make an award of interest on non-pecuniary damages. It further provides that, in determining the amount of non-pecuniary damages, a judge must make allowance for the loss of opportunity to invest the amount of the damages. [38] In the present case, the judge determined the amount of non-pecuniary damages. When the award of $175,000 for non-

pecuniary damages was appealed, absent a cross appeal, this Court was entitled to assume that the judge had complied with section 80(3) and that an allowance for the loss of opportunity to invest was included in that award. As noted previously, this Court concluded that, in light of counsel’s submissions and the awards made in other cases, the amount of non-pecuniary damages should not be changed. [ 39 ] If the plaintiff was unhappy with the amount awarded by the judge for non-pecuniary damages, he should have appealed (or cross appealed) that portion of the decision.

He failed to do so. [ 40 ] When the controversy regarding the loss of opportunity to invest the non-pecuniary damages arose before the certificate of decision was signed, consideration was given to exercising rights of appeal but later abandoned. At some point, to ensure a proper balance is maintained in the justice system, matters must come to an end to respect the public interest in finality of litigation, fairness to the hospital, judicial economy and to ensure that the most proportional process is followed.

Disposition [ 41 ] In the result, I would allow the appeal and set aside the order appealed from, with costs to the hospital in this Court and the Court below. JA I agree: JA I agree: JA