Keys v. Mistahia Regional Health Authority et al., 2002 ABCA 296

• Judge: Hunt, Berger and Costigan, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 28, 2002
• Citations: 2002 ABCA 296;(2002), 320 A.R. 87 (CA)

Keys v. Mistahia Regional Health (2002), 320 A.R. 87 (CA);

    288 W.A.C. 87

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. DE.051

Heather D. Keys and Heather D. Keys as next friend of Liam Keith (appellants/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. Brian P. Muir, Dr. John Doe No. 1, B. Huiz, J. Young and B. Patterson, John Doe No. 2 and John Doe No. 3 (respondents/defendants) and Dr. B. Robertson (not a party to the appeal/defendant)

(0103-0207-AC; 2002 ABCA 296)

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

Alberta Court of Appeal

Hunt, Berger and Costigan, JJ.A.

November 28, 2002.

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 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, in a decision reported 291 A.R. 97, determined the issue. The plaintiffs appealed.

The Alberta Court of Appeal dismissed the appeal.

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 trial judge 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 - The Alberta Court of Appeal dismissed the plaintiffs' appeal - See paragraphs 4 to 5.

Counsel:

B.J. Larbalestier, for the appellants;

J.M. Guthrie, for the respondents Mistahia Regional Health Authority;

J.G. Martland, Q.C., for the respondent Doctors.

This appeal was heard on November 28, 2002, before Hunt, Berger and Costigan, JJ.A., of the Alberta Court of Appeal. Hunt, J.A., delivered the following oral memorandum of judgment for the court from the bench on that date and filed it on December 10, 2002.