Keys v. Mistahia Regional Health Authority et al., (2001) 291 A.R. 97 (QB)

• Judge: Murray, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 06, 2001
• Citations: (2001), 291 A.R. 97 (QB)

Keys v. Health Authority (2001), 291 A.R. 97 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. AP.115

Heather D. Keys and Heather D. Keys as next friend of Liam Keith (plaintiffs) v. Mistahia Regional Health Authority, Mistahia Regional Health Authority operating as the Queen Elizabeth II Hospital, Queen Elizabeth II Hospital, Dr. Cledwyn E. Lewis, Dr. John Doe No. 1, B. Huiz, J. Young, B. Patterson, John Doe No. 2 and John Doe No. 3 (defendants)

(Action No. 9703 14590)

Indexed As: Keys v. Mistahia Regional Health Authority et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Murray, J.

April 10, 2001.

Summary:

The plaintiffs sued the defendant doctors, nurses and hospital alleging they were negli­gent and breached their contract with the plaintiffs respecting the delivery of the infant plaintiff. A case management judge directed that a preliminary trial be held to determine whether the provisions of the Limitations of Actions Act (1980) defeated the plaintiffs' claims.

The Alberta Court of Queen's Bench deter­mined the issue.

Hospitals - Topic 2182

Liability of hospitals - Limitation of actions - When applicable - The plaintiffs sued, inter alia, the defendant doctors and hospital alleging they were negligent and breached their contract with the plaintiffs respecting the delivery of the infant plain­tiff in March 1996 - The plaintiff mother, who claimed for nervous shock, argued that the standard two year limitation period applied as the one year limitation periods in ss. 55 and 56 Limitation of Actions Act (1980) respecting doctors and hospitals applied to patients and not to third parties of the doctor-patient relationship - The defendants argued that ss. 55 and 56 applied as it was a derivative action arising out of the infant's claim and therefore could not have a longer limitation period than the infant's claim - The Alberta Court of Queen's Bench stated that s. 55(a) and s. 56 did not apply to personal claims made by third parties to the doctor-patient relationship - Section 51 applied in this case - However, the mother's derivative claim, her claim in contract, and her action based on her status as a patient could not be maintained - The court also rejected the defendants' argument that the mother's claim should be restricted to the events that occurred after the infant's birth - See paragraphs 61 to 91.

Limitation of Actions - Topic 3101

Actions in tort - Negligence - General - [See Hospitals - Topic 2182 ].

Limitation of Actions - Topic 9058

Persons under disability and exemptions and exclusions - Infants - Infants in actual custody of parent or guardian - The plain­tiffs sued the defendant doctors, nurses and hospital alleging they were negligent and breached their contract with the plaintiffs respecting the delivery of the infant plain­tiff in March 1996 - The action was out­side the applicable one year limitation periods (Limitation of Actions Act (1980), ss. 55 and 56) - Section 59(1) postponed the limitation periods respecting persons under disability, including minors, until that disability ceased unless, as provided in s. 59(2)(a), the person under disability was a minor in the "actual care and control of the parent or guardian" - The Alberta Court of Queen's Bench rejected the mother's argument that she did not have actual custody of the infant until the latter of August 1996, because she was unable to grasp the full implications of the circum­stances involving the infant's problem and thus was unable to take steps to deal with making a decision as to whether or not legal proceedings should be brought on his behalf - See paragraphs 44 to 53.

Limitation of Actions - Topic 9058

Persons under disability and exemptions and exclusions - Infants - Infants in actual custody of parent or guardian - The plain­tiffs sued the defendant doctors, nurses and hospital alleging they were negligent and breached their contract with the plaintiffs respecting the delivery of the infant plain­tiff in March 1996 - The action was out­side the applicable one year limitation periods (Limitation of Actions Act (1980), ss. 55 and 56) - Section 59(1) postponed the limitation periods respecting persons under disability, including minors, until that disability ceased unless, as provided in s. 59(2)(a), the person under disability was a minor in the "actual care and control of the parent or guardian" - The Alberta Court of Queen's Bench rejected the mother's argument that she did not have actual custody of the infant until he was discharged from the hospital on March 28, 1996 - She maintained effective care and control of the child throughout his hos­pitalization - See paragraphs 54 to 59.

Medicine - Topic 4324

Liability of practitioners - Bars to actions -Limitation periods - [See Hospitals - Topic 2182 ].

Torts - Topic 8141

Derivative actions - By family of person injured or killed - General - [See Hos­pitals - Topic 2182 ].

Cases Noticed:

Czyz et al. v. Langenhahn et al. (1998), 219 A.R. 9; 179 W.A.C. 9; 61 Alta. L.R.(3d) 115 (C.A.), refd to. [para. 40].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 41].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 41].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 41].

Perrie v. Martin, [1986] 1 S.C.R. 41; 64 N.R. 195; 12 O.A.C. 269, refd to. [para. 41].

Fehr v. Jacob and Bethel Hospital, [1993] 5 W.W.R. 1; 85 Man.R.(2d) 63; 41 W.A.C. 63 (C.A.), refd to. [para. 41].

Photinopoulos v. Photinopoulos et al. (1988), 92 A.R. 122 (C.A.), refd to. [para. 41].

Thomas v. Radvak (1997), 200 A.R. 123; 146 W.A.C. 123; 51 Alta. L.R.(3d) 327 (C.A.), refd to. [para. 44].

Currie v. Fairy Hill Ltd., [1968] I.R. 232 (S.C.), refd to. [para. 45].

Hewer v. Bryant, [1969] 3 All E.R. 578 (C.A.), refd to. [para. 46].

Blair v. Fundytus (1978), 11 A.R. 243; 5 Alta. L.R.(2d) 346 (T.D.), refd to. [para. 46].

Todd v. Davison, [1972] A.C. 392 (H.L.), refd to. [para. 49].

Brown et al. v. University of Alberta Hos­pital et al. (1997), 197 A.R. 237; 48 Alta. L.R.(3d) 1 (Q.B.), refd to. [para. 50].

Rogers v. Exeter and Mid-Devon Hospitals Management Committee (1974), 119 Sol. Jo. 86 (Q.B.D.), refd to. [para. 56].

Millard v. Millard and Calgary (City) (1983), 65 A.R. 355 (C.A.), refd to. [para. 57].

Campbell v. Fang and Steinhauer (1994), 155 A.R. 270; 73 W.A.C. 270 (C.A.), refd to. [para. 62].

Von Cramm v. Riverside Hospital, Andres and Wills (1986), 17 O.A.C. 218; 32 D.L.R.(4th) 314 (C.A.), refd to. [para. 62].

Méthot v. Montreal Transportation Com­mission, [1972] S.C.R. 387, refd to. [para. 64].

Child and Family Services of Winnipeg Northwest v. D.F.G., [1997] 3 S.C.R. 925; 219 N.R. 241; 121 Man.R.(2d) 241; 158 W.A.C. 241, refd to. [para. 82].

Watt v. Rama, [1972] V.R. 353 (Full Ct.), refd to. [para. 82].

Cherry v. Borsman (1992), 16 B.C.A.C. 93; 28 W.A.C. 93; 94 D.L.R.(4th) 487 (C.A.), leave to appeal refused (1993), 152 N.R. 240; 32 B.C.A.C. 79; 53 W.A.C. 79; 99 D.L.R.(4th) vii (S.C.C.), refd to. [para. 83].

Statutes Noticed:

Limitations of Actions Act, R.S.A. 1980, c. L-15, sect. 55(a), sect. 56, sect. 59(1), sect. 59(2)(a) [para. 2].

Authors and Works Noticed:

Klar, Lewis N., Linden, Allan, Cherniak, Earl and Kryworuk, Peter, Remedies in Tort (Looseleaf), c. 16, Part I, para. 225.1, Part III, para. 131 [para. 85].

Counsel:

B.J. Larbalestier, for the plaintiffs;

J.M. Guthrie, for the defendant Hospital and Nurses;

J.G. Martland, Q.C., for the defendant Physicians.

This preliminary trial was heard on February 6, 2001, before Murray, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 10, 2001.