Birrell v. Providence Health Care Society et al., 2009 BCCA 109

• Judge: Donald, Lowry and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 17, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 109;(2009), 268 B.C.A.C. 94 (CA)

Birrell v. Providence Health (2009), 268 B.C.A.C. 94 (CA);

    452 W.A.C. 94

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. MR.043

Margaret Birrell (respondent/plaintiff) v. Providence Health Care Society dba Providence Health Care and dba St. Paul's Hospital and dba The B.C. Ear Bank, and Vancouver Coastal Health Authority dba Vancouver General Hospital and dba Vancouver Hospital and dba The B.C. Ear Bank, and The University of British Columbia dba The B.C. Ear Bank, and John Doe (appellants/defendants)

(CA035140; CA035145; 2009 BCCA 109)

Indexed As: Birrell v. Providence Health Care Society et al.

British Columbia Court of Appeal

Donald, Lowry and Neilson, JJ.A.

March 13, 2009.

Summary:

In 1994, Birrell underwent ear surgery involving tissue replacement. In 2003, Health Canada publicly warned recipients of tissue from an ear bank of a risk of infection (inadequate records of donor screening). No one suffered any infection. Birrell sued organizations in the provincial health system, including two hospitals and a university, claiming damages for nervous shock. Birrell learned she had received no tissue from the ear bank and could not maintain an action. In 2006, she applied to add Corfield and Little, who had received tissue in 1991 and 1996, respectively. This was as yet an uncertified class action for personal injury. The hospitals applied to have Birrell's action dismissed, contending that the action was subject to the ultimate time limitation of six years from the time the surgeries were performed, which had long expired, and therefore the addition could not be justified.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. C91; 2007 BCSC 668, rejected the hospitals' contention. The ultimate time limit did not start to run until at least 2003, when the proposed plaintiffs could first have learned of the risk of infection. The court exercised its discretion under the Rules of Court to add the proposed plaintiffs, and ordered Birrell removed as a party. The hospitals appealed. The university took no position.

The British Columbia Court of Appeal held that the causes of action were complete in 1991 and in 1996, and the ultimate time limit began in each instance to run, expiring before 2003. The court allowed the appeal to the extent of varying the order to declare Corfield and Little had no cause of action against the hospitals. They were added as parties to the class action against the university and the hospitals in order to preserve any cause of action members of the putative class might have that was not time-barred against the hospitals in particular.

Hospitals - Topic 2190

Liability of hospitals - Limitation of actions - When time begins to run - [See Limitation of Actions - Topic 1904 ].

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Limitation of Actions - Topic 1904 ].

Limitation of Actions - Topic 207

Practice - Limitation period - Commencement of - [See Limitation of Actions - Topic 1904 ].

Limitation of Actions - Topic 1904

Actions - General - Ultimate limitation period - In 2003, Health Canada publicly warned recipients of tissue from an ear bank (under the auspices of two hospitals and a university) of a risk of infection - No one suffered any infection - A plaintiff sued, claiming damages for nervous shock - In 2006, the plaintiff learned she had received no tissue, and applied to add two plaintiffs who had received tissue in 1991 and 1996, respectively - The hospitals contended that they were protected by a six-year ultimate limitation period set out in s. 8 of the Limitation Act; i.e., that the action was subject to the ultimate time limitation of six years from the time the surgeries were performed, which had long expired - The applications judge disagreed, concluding that the ultimate time limit did not start to run until 2003, because that was the earliest the nervous shock was suffered - The hospitals appealed - The British Columbia Court of Appeal held that the causes of action were complete in 1991 and in 1996, and the ultimate time limit began in each instance to run, expiring before 2003 - The injury occurred at the time of the surgeries because it was then that the proposed plaintiffs were put at risk - Discoverability was not a consideration where an ultimate limitation period arose - See paragraphs 8 to 16.

Limitation of Actions - Topic 3103

Actions in tort - Negligence - When time begins to run - [See Limitation of Actions - Topic 1904 ].

Limitation of Actions - Topic 3108

Actions in tort - Negligence - Personal injury - [See Limitation of Actions - Topic 1904 ].

Practice - Topic 210.6

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Limitation of actions - [See both Practice - Topic 622 ].

Practice - Topic 605

Parties - Adding or substituting parties - Application of limitation periods - [See both Practice - Topic 622 ].

Practice - Topic 622

Parties - Adding or substituting parties - Original plaintiff without a cause of action - Adding a plaintiff - An appeal was taken from a judge's order allowing an application to add two proposed plaintiffs, which raised, in the main, a question of whether the time limited by statute for them to commence an action had passed - This was as yet an uncertified class action for personal injury - The British Columbia Court of Appeal stated that it was necessary to consider whether, in light of the expiry of the ultimate limitation period, the judge's disposition should stand, "having particular regard for this being a class action where the interests of the putative class as a whole are not to be overlooked" - While the expiry of a limitation period was a factor to be considered in the exercise of the discretion to add a party under Rule 15(5)(a)(iii), it was not a bar to the addition of a party to an action where it was just and convenient the party should be added - No case, however, had been drawn to the court's attention where an application succeeded in adding a party where an ultimate limitation period had expired - See paragraphs 17, 26.

Practice - Topic 622

Parties - Adding or substituting parties - Original plaintiff without a cause of action - Adding a plaintiff - In 1994, Birrell's ear surgery involved tissue replacement - In 2003, Health Canada publicly warned recipients of ear tissue of a risk of infection - Birrell sued the organizations allegedly responsible, including two hospitals and a university, claiming damages for nervous shock - In 2006, after learning she could not maintain an action, she applied to add Corfield and Little, who had received tissue in 1991 and 1996, respectively - This was as yet an uncertified class action for personal injury - The applications judge added the proposed plaintiffs - The hospitals appealed, contending that they were protected by a six-year ultimate limitation period - The university took no position - The plaintiff argued that the prejudice to members of the putative class would be extreme if Corfield and Little were not added, and that the application against the university (which did not have the benefit of the ultimate limitation defence) was sufficient to preserve the action against the hospitals for the benefit of the putative class - The British Columbia Court of Appeal allowed the appeal to the extent of varying the order to declare Corfield and Little had no cause of action against the hospitals - The court added Corfield and Little as plaintiffs to the class action against the university and the hospitals in order to preserve any cause of action members of the putative class might have that was not time-barred against the hospitals in particular - See paragraphs 17 to 30.

Practice - Topic 651

Parties - Adding or substituting parties - Adding or substituting plaintiffs - Circumstances when allowed - [See both Practice - Topic 622 ].

Practice - Topic 653

Parties - Adding or substituting parties - Adding or substituting plaintiffs - Application of limitation periods - [See both Practice - Topic 622 ].

Practice - Topic 716

Parties - Adding or substituting parties - Notwithstanding limitation period - Prejudice to opposing party - [See second Practice - Topic 622 ].

Torts - Topic 8701

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - General - [See Limitation of Actions - Topic 1904 ].

Torts - Topic 9157.2

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Public health authorities - [See second Practice - Topic 622 ].

Cases Noticed:

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161; 63 B.C.L.R.(3d) 41, refd to. [para. 9].

Clover v. Hurley (1993), 23 B.C.A.C. 155; 39 W.A.C. 155 (C.A.), leave to appeal refused (1993), 164 N.R. 240; 47 B.C.A.C. 253; 76 W.A.C. 253 (S.C.C.), refd to. [para. 10].

Bera v. Marr (1986), 27 D.L.R.(4th) 161; 1 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 12].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 328 O.A.C. 130; 2008 SCC 27, refd to. [para. 13].

Kruk v. Ho et al. (2008), 255 B.C.A.C. 223; 430 W.A.C. 223; 81 B.C.L.R.(4th) 88; 2008 BCCA 201, refd to. [para. 14].

Giuliano v. Allstate Insurance Co., [2003] O.T.C. 756; 66 O.R.(3d) 238; 40 C.P.C.(5th) 140 (Sup. Ct.), refd to. [para. 17].

MacKinnon v. National Money Mart Co. et al. (2004), 203 B.C.A.C. 85; 332 W.A.C. 85; 33 B.C.L.R.(4th) 21; 2004 BCCA 472, refd to. [para. 17].

Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. et al. (1996), 71 B.C.A.C. 161; 117 W.A.C. 161; 19 B.C.L.R.(3d) 282; 46 C.P.C.(3d) 183 (C.A.), refd to. [para. 20].

Statutes Noticed:

Limitation Act, R.S.B.C. 1996, c. 266, sect. 4(1)(d) [para. 19]; sect. 8 [para. 8].

Rules of Court (B.C.), Supreme Court Rules, rule 15(5)(iii)[para. 18].

Counsel:

C.L. Woods, Q.C., for the appellant, Providence Health Care Society;

J.G. Dives, for the appellant, Vancouver Coastal Health Authority;

D. Klein and N.C. Hartigan, for the respondent.

This appeal was heard in Vancouver, British Columbia, on February 17, 2009, by Donald, Lowry and Neilson, JJ.A., of the British Columbia Court of Appeal. Lowry, J.A., delivered the following reasons for judgment of the court on March 13, 2009.