Dmytriw v. Odim et al., 2008 MBQB 12

• Judge: Simonsen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 07, 2008
• Jurisdiction: Manitoba
• Citations: 2008 MBQB 12;(2008), 226 Man.R.(2d) 284 (QB)

Dmytriw v. Odim (2008), 226 Man.R.(2d) 284 (QB)

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. JA.027

Ian Dmytriw, an infant who sues by his father and next friend, Gordon Dmytriw, Gordon Dmytriw and Rhonda Dmytriw (plaintiffs) v. Jonah N.K. Odim, Niels Giddins, Brian Postl, Oscar Casiro, Shirley Scott, Robert Blanchard, Helmut Unruh, Health Sciences Centre, Winnipeg Regional Health Authority and The Government of Manitoba and The Minister of Health, Province of Manitoba (defendants)

(CI 02-01-26964; 2008 MBQB 12)

Indexed As: Dmytriw v. Odim et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Simonsen, J.

January 7, 2008.

Summary:

The plaintiffs in a medical malpractice action moved to sever the issue of liability from the issue of assessment of damages.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at 211 Man.R.(2d) 178, granted the motion. The remaining defendants, two doctors, appealed.

The Manitoba Court of Queen's Bench allowed the appeal.

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - The infant plaintiff was born in 1994 with a transposition of the great arteries - Surgery was required to reverse the situation - The infant became a paraplegic - The plaintiff and his parents sued for damages for medical malpractice and moved for severance of liability from damages - The Manitoba Court of Queen's Bench, on appeal against a Master's decision, dismissed the motion - The court could not conclude that the plaintiffs would suffer financial hardship because they would have to pay for expert reports on damages - It was an oversimplification to say that a finding of liability required only proof that the doctors caused the paraplegia and that any other issues relating to causation of the infant plaintiff's condition could be dealt with in a separate damage trial - The plaintiffs indicated that they would present a "monumental amount" of evidence to establish liability - In these circumstances, the court was not convinced that severing damages from liability would save a significant amount of time relative to the total time required for the trial - There were no exceptional circumstances justifying severance - See paragraphs 1 to 30.

Cases Noticed:

Reyher et al. v. Rempel et al. (1994), 99 Man.R.(2d) 105 (Q.B.), refd to. [para. 11].

Manitoba Housing and Renewal Corp. v. Western Surety Co. et al. (1997), 116 Man.R.(2d) 211 (Q.B.), refd to. [para. 11].

Doucet-Vienneau et al. v. Region 6 Hospital Corp. et al. (1995), 161 N.B.R.(2d) 205; 414 A.P.R. 205 (T.D.), refd to. [para. 11].

Fagervik v. Dzaman, [1996] B.C.T.C. Uned. E91 (S.C.), refd to. [para. 11].

Investors Syndicate Ltd. v. Pro-Fund Distributors Ltd. et al. (1980), 12 Man.R.(2d) 104 (Q.B.), affd. (1981), 12 Man.R.(2d) 101 (C.A.), refd to. [para. 12].

Hemmerling v. Hole, [2005] B.C.T.C. 35; 2005 BCSC 35, refd to. [para. 14].

Duffy v. Gillespie et al. (1997), 105 O.A.C. 283; 36 O.R.(3d) 443 (Div. Ct.), refd to. [para. 16].

Moseley v. Spray Lakes Sawmills (1980) Ltd. et al., [1995] 4 W.W.R. 367; 164 A.R. 76 (Q.B.), refd to. [para. 16].

Stoiantsis et al. v. Spirou et al., [2003] O.T.C. 729 (Sup. Ct. Master), refd to. [para. 21].

Counsel:

Norman A. Cuddy and Jason Kendall, for the plaintiffs;

Tyler J. Kochanski, for the defendants, Jonah N.K. Odim and Niels Giddins.

This appeal was heard by Simonsen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on January 7, 2008.