Docket: CACV2617 Kelvin Mark Rekken v. Susan Louise Rekken, administrators, 2014 SKCA 108

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 108 Date: 2014-10-23 Between: Docket: CACV2617 Kelvin Mark Rekken and Susan Louise Rekken, administrators of the Estate of Bowan Karl Rekken, and Kelvin Mark Rekken and Susan Louise Rekken, in their individual capacities (Plaintiffs)Prospective Appellants - and - Health Region #1, Dr. J.F. Malan and Dr. P.J. Greyling (Defendants) Prospective Respondents Before: Herauf J.A. Counsel: Mervin C. Phillips for prospective appellants Reginald A. Watson, Q.C. for the prospective respondent Health Region David E. Thera , Q.C. for the prospective respondents Malan and Greyling Application:

From: 2014 SKQB 271 Heard: October 22, 2014 Disposition: Application granted Written Reasons: October 23, 2014 By: The Honourable Mr. Justice Herauf Herauf J.A. [1] The Rekkens seek leave to appeal a decision made by Mr. Justice Keene that dismissed an application to amend the statement ofclaim by adding claims for aggravated and punitive damages against the respondents (see: 2014 SKQB 271).

The claim involves anaction under The Fatal Accidents Act, RSS 1978, c F-11, regarding the death of the applicants’ son in 2003. [2] Justice Keene refused to amend the pleadings on the footing that “there is no basis under the Act for such a claim.” Justice Keenemade reference to the longstanding authority that limits entitlements under the Act to pecuniary losses only. There is no dispute thataggravated and punitive damage would fall into the category of non-pecuniary damages.

For example see: Keizer v Hanna, (SCC), [1978] 2 SCR 342; Sakaluk v LePage, Government of Saskatchewan (Central Vehicle Agency) and Sask Power Corp., (SK CA), [1981] 2 WWR 597 at para 8 and Sickel Estate v Gordy, 2008 SKCA 100 at para 96, 298 DLR (4th) 151. [3] Counsel for the applicants would distinguish the above noted decisions on the basis that the conduct complained of in this actioninvolves an allegation of evidence tampering by the respondents following the death of the applicants’ son with the intent to defeat theclaim.

The applicants rely upon a recent decision of the Alberta Court of Appeal in Steinkrauss v Afridi, 2013 ABCA 417, 566 AR 128.In Steinkrauss, the Alberta Court of Appeal permitted an action to proceed with a claim for punitive damages under the Albertaequivalent of The Fatal Accidents Act. The facts in Steinkrauss also involved an allegation of egregious conduct by the defendantrelating to the tampering of medical records post-death.

At para. 21 of Steinkrauss, the Alberta Court of Appeal concluded that “… itcannot be said that a claim for punitive damages is never possible under the Fatal Accidents Act.” [4] Bearing in mind the criteria for granting leave to appeal an interlocutory order as set out in Rothmans, Benson & Hedges Inc. vSaskatchewan, 2002 SKCA 119 at para 6, 277 Sask R 121, I am of the view that leave to appeal should be granted based upon merit andimportance.

As noted by the applicants, there is no clear pronouncement from this Court as to whether non-pecuniary losses can be thesubject of a Fatal Accidents Act claim with respect to events which take place after the death of the deceased and which are directedagainst the plaintiffs and not against the deceased. As well, there is nothing in The Fatal Accidents Act that specifically prohibits anaward for non-pecuniary damages. I, like the prospective respondents, have concerns about delays since this action was launched overten years ago.

However, this is an expedited appeal and adherence to the time limits in the Court of Appeal Civil Rules would permit thisappeal to be set for hearing early in 2015. [5] An order will issue granting the applicants leave to appeal the order of Mr. Justice Keene issued on September 24, 2014 withrespect to the three grounds of appeal set out in the draft notice of appeal filed with the application for leave. [6] Costs of the application shall be costs in the cause of action as it relates to the issue to go before this Court.

DATED at the City of Regina, in the Province of Saskatchewan, this 23rd day of October, A.D. 2014. “Herauf J.A.”_________________________ Herauf J.A.