Laing v. Sekundiak, 2015 MBCA 72

JudgeHamilton, MacInnes and Monnin, JJ.A.
CourtCourt of Appeal (Manitoba)
Case DateJanuary 15, 2015
JurisdictionManitoba
Citations2015 MBCA 72;(2015), 319 Man.R.(2d) 268 (CA)

Laing v. Sekundiak (2015), 319 Man.R.(2d) 268 (CA);

      638 W.A.C. 268

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AU.003

Lauren Williams Laing (applicant/appellant) v. Todd Sekundiak (respondent/respondent)

(AI 14-30-08195; 2015 MBCA 72)

Indexed As: Laing v. Sekundiak

Manitoba Court of Appeal

Hamilton, MacInnes and Monnin, JJ.A.

July 28, 2015.

Summary:

In June 2004, Laing applied for leave under the Limitation of Actions Act to commence a negligence action against Sekundiak, a doctor who performed an operation on Laing in March 1999. In 2006, Laing amended her application to include a lack of informed consent as well as a breach of the duty of care in the negligence action and to add a battery claim. In 2008, a motion by Sekundiak to dismiss the application for delay was denied. In 2011, Sekundiak brought a second motion to dismiss the application.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at (2012), 297 Man.R.(2d) 181, denied the motion. Sekundiak appealed.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 286 Man.R.(2d) 273, dismissed the appeal.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 302 Man.R.(2d) 116, dismissed the application for leave to commence the action. While Laing had brought her application for leave within 12 months from when she first knew or ought to have known of all material facts of a decisive character upon which her proposed action was based, the evidence fell short of showing on a prima facie basis that there was a reasonable chance of success for the proposed causes of action. Laing appealed.

The Manitoba Court of Appeal allowed the appeal in part and granted leave for the claim for lack of informed consent.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Limitation of Actions - Topic 9612 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 9612 ].

Limitation of Actions - Topic 9612

Enlargement of time period - Application for - When available - The applicant appealed the dismissal of an application for leave to begin an action against an orthopaedic surgeon under the Limitation of Actions Act - The applicant asserted that in March 1999, the respondent used a new and unproven hip replacement system (ABC system), that was not licensed for use in Canada, without her consent and, as a result, she suffered damage - Her proposed causes of action were in negligence and for battery - The negligence allegations were for breach of the duty of care and for lack of informed consent - The application judge found that the applicant had filed her application within the time required pursuant to s. 14(1) of the Act, but she had not established a reasonable chance of success for her proposed causes of action, as required by s. 15(2) - On the appeal, the respondent argued that the application judge had erred in finding that the application had been commenced within the time prescribed by s. 14(1) for the proposed claims for lack of informed consent and battery (i.e., that the applicant brought her application for leave within 12 months from when she first knew or ought to have known of all material facts of a decisive character upon which her proposed action was based) - The Manitoba Court of Appeal found no palpable and overriding error in the application judge's finding on this issue - See paragraphs 114 to 118.

Limitation of Actions - Topic 9614

Enlargement of time period - Application for - Considerations (incl. evidence) - [See Torts - Topic 3200 ].

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - The applicant appealed the dismissal of an application for leave to begin an action against an orthopaedic surgeon under the Limitation of Actions Act - The applicant asserted that in March 1999, the respondent used a new and unproven hip replacement system (ABC system), that was not licensed for use in Canada, without her consent and, as a result, she suffered damage - The applicant had undergone subsequent hip surgeries by Dr. Hedden - The Manitoba Court of Appeal held that the application judge erred in law respecting the applicant's claim for lack of informed consent and consequently, ignored relevant evidence - As a result, he erred in concluding that she had failed to demonstrate that her proposed claim for lack of informed consent had a reasonable chance of success (Act, s. 15(2)) - "The application judge focussed his analysis solely on the question of the disclosure of material risks. By doing so, he erred in principle for which the standard of review is correctness. This approach is 'doctor-centric', as opposed to the 'patient-centric' approach called for by the jurisprudence. This error led him to conclude that the applicant's lack of expert medical opinion evidence defeated her application in respect of her claim for lack of informed consent. This was a palpable and overriding error. Furthermore, ... there was evidence of risk from Dr. Hedden that should have been considered. This was a further palpable and overriding error. The applicant's evidence establishes that the ABC system was unlicensed, was still being assessed by Health Canada and could only be used by a doctor in very specific circumstances, which were not the applicant's circumstances. The application judge assessed this evidence only in the context of his material risks analysis and not in the context of asking whether this was material information that a reasonable person in the applicant's circumstances would want to know. ...  [T]his was information that a trier of fact could reasonably find to be material information that the respondent had a duty to disclose. Furthermore, Dr. Hedden's evidence establishes, at least by reasonable inference, that in 1999 the use of the ABC system, being a ceramic on ceramic system, had the serious risk of causing titanium shavings being released into the body and that this risk did not arise with the conventional polyethylene system. Therefore, a trier of fact could reasonably find that the respondent failed to disclose a material risk to the applicant." - See paragraphs 96 to 98.

Medicine - Topic 3052

Relation with patient - Consent to treatment - Standard of disclosure by doctor - [See Medicine - Topic 3045 ].

Medicine - Topic 3052

Relation with patient - Consent to treatment - Standard of disclosure by doctor - The Manitoba Court of Appeal stated that "[t]he law with respect to medical negligence for lack of informed consent has expanded since the case of Reibl [1980 S.C.C.]. While Reibl remains the leading Supreme Court of Canada authority, many appellate decisions have broadened its impact by expanding a physician's duty to disclose beyond the 'material risks' discussed in Reibl." - The court discussed the present state of the law regarding informed consent - See paragraphs 79 to 86.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The Manitoba Court of Appeal discussed the issue of causation - The court stated that "...  to prove causation, the plaintiff must prove that a reasonable person in the patient's circumstances would not have proceeded with the surgery. If it is a question of alternative treatment, the plaintiff must also prove that the alternative treatment would not have resulted in the same damage ... ." - Regarding the latter burden, the court stated that an inference of causation could be drawn (Snell v. Farrell, 1990 S.C.C.) - See paragraphs 87 to 95.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The applicant appealed the dismissal of an application for leave to begin an action against an orthopaedic surgeon under the Limitation of Actions Act - The applicant asserted that in March 1999, the respondent used a new and unproven hip replacement system (ABC system), that was not licensed for use in Canada, without her consent and, as a result, she suffered damage - The applicant underwent subsequent hip surgeries by Dr. Hedden - The Manitoba Court of Appeal stated that "[i]n addressing the consent aspect of causation, the application judge ... erred by focussing on the lack of expert evidence about the risks of the ABC system. ...  [T]he risks of a surgery are not the only information that needs to be disclosed. Other material information must be disclosed. ...  [T]he applicant has demonstrated that she has a reasonable chance of success of demonstrating that a reasonable person in her circumstances would not have consented to the use of the ABC system, given it was not licensed and under a strict approval regime by Health Canada, and given the risk of titanium debris. As for Dr. Hedden's evidence, the application judge rightly noted his expertise. However, while he explained Dr. Hedden's evidence in his reasons, he failed to give it any import for the purposes of the causation analysis. ...  [T]his was a palpable and overriding error. ...  Using the robust and pragmatic approach endorsed by Snell and Ediger, ... it would be reasonable to infer that the surgery discussed and consented to by the applicant involved the conventional polyethylene components. Furthermore, she demonstrated through Dr. Hedden's reports and his evidence that the ABC system caused titanium debris that would not have occurred with the traditional polyethylene system and that the debris was extremely problematic, particularly for a young patient like the applicant. ...  [T]his evidence was sufficient for the applicant to demonstrate a reasonable chance of success that a trier of fact will find that, but for the use of the ABC system, the applicant would not have suffered the damage caused by the debris. That, in turn, is sufficient to demonstrate that but for the ABC system she would not have suffered the same damage as the treatment to which she consented." - See paragraphs 99 to 113.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - The applicant appealed the dismissal of her application for leave to begin an action against an orthopaedic surgeon under the Limitation of Actions Act - The applicant asserted that in March 1999, the respondent used a new and unproven hip replacement system (ABC system), that was not licensed for use in Canada, without her consent and, as a result, she suffered damage - In holding that the applicant's claim that the respondent had breached his duty of care had no reasonable chance of success, the application judge stated that "...  there is essentially no evidence of how a prudent and diligent doctor, possessing a reasonable level of knowledge at the time, competence, and skill, in that field would have conducted himself or herself in the same circumstances as [the respondent]." - The Manitoba Court of Appeal held that "[t]he application judge was not obliged ... to infer that the respondent breached the duty of care by using the ABC system during the surgery. I see no error in how the application judge approached his analysis with respect to the proposed cause of action in negligence for breach of the duty of care either in principle or in fact. His conclusion that the applicant had not demonstrated a reasonable chance of success for her proposed claim in negligence for breaching the duty of care is a question of mixed fact and law, and as such, is entitled to deference." - See paragraphs 68 to 73.

Medicine - Topic 4324

Liability of practitioners - Bars to actions - Limitation periods - [See Limitation of Actions - Topic 9612 ].

Torts - Topic 3200

Trespass - Assault and battery - Defences - Consent - The applicant appealed the dismissal of her application for leave to begin an action against an orthopaedic surgeon under the Limitation of Actions Act - The applicant asserted that in March 1999, the respondent used a new and unproven hip replacement system (ABC system), that was not licensed for use in Canada, without her consent and, as a result, she suffered damage - The Manitoba Court of Appeal held, inter alia, that the application judge did not err in holding that the applicant's cause of action in battery had no chance of success (Act, s. 15(2)) - "Here the applicant consented to hip surgery and hip surgery was performed by the respondent. The applicant argues that the use of the ABC system without her consent constituted the tort of battery. Given the commentary in Reibl [1980 S.C.C.], I am not persuaded that the applicant has demonstrated any error on the part of the application judge that would permit this court to intervene in the judge's exercise of discretion. Deference is owed to his conclusion that, given the applicant's consent to a 'right total hip arthroplasty', she did not establish ...; '...  on a prima facie basis that the use of the ABC System was beyond that to which there was consent or the basic nature and character of the operation performed was not substantially that of which [the applicant] was advised and then agreed to.'" - See paragraphs 74 to 78.

Cases Noticed:

Revell v. Heartwell et al. (2010), 266 O.A.C. 184; 2010 ONCA 353, refd to. [para. 39].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, consd. [para. 41].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185, refd to. [para. 44].

Kelly v. Hazlett (1976), 15 O.R.(2d) 290 (H.C.), refd to. [para. 45].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 47].

McIntyre v. Frohlich et al. (2013), 288 Man.R.(2d) 291; 564 W.A.C. 291; 2013 MBCA 20, refd to. [para. 57].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 58].

Einarsson et al. v. Adi's Video Shop et al. (1992), 76 Man.R.(2d) 218; 10 W.A.C. 218 (C.A.), refd to. [para. 60].

Justice v. Cairnie Estate et al. (1993), 88 Man.R.(2d) 43; 51 W.A.C. 43 (C.A.), refd to. [para. 62].

Hydro Electric Board (Man.) v. Inglis (John) Co. et al. (1999), 142 Man.R.(2d) 1; 212 W.A.C. 1 (C.A.), refd to. [para. 63].

Chan v. Chan et al., [2001] Man.R.(2d) Uned. 148; 2001 MBCA 191, refd to. [para. 64].

Johnson v. Johnson (2001), 163 Man.R.(2d) 46; 269 W.A.C. 46; 2001 MBCA 203, refd to. [para. 65].

Alexander et al. v. Zurich Insurance Co. et al., [2002] Man.R.(2d) Uned. 41; 2002 MBCA 88, refd to. [para. 65].

Timmerman v. Selkirk and District Planning Area Board et al. (2008), 228 Man.R.(2d) 77; 427 W.A.C. 77; 2008 MBCA 52, refd to. [para. 66].

Benson v. Workers' Compensation Board (Man.) et al. (2014), 303 Man.R.(2d) 186; 600 W.A.C. 186; 2014 MBCA 19, refd to. [para. 66].

Ciarlariello et al. v. Schacter et al., [1993] 2 S.C.R. 119; 151 N.R. 133; 62 O.A.C. 161, refd to. [para. 74].

Gerelus v. Lim et al. (2008), 231 Man.R.(2d) 23; 437 W.A.C. 23; 2008 MBCA 89, refd to. [para. 80].

Lepp v. Hopp, [1980] 2 S.C.R. 192; 32 N.R. 145; 22 A.R. 361, refd to. [para. 81].

Cory v. Bass (2012), 522 A.R. 220; 544 W.A.C. 220; 2012 ABCA 136, refd to. [para. 82].

Brito v. Woolley et al. (2003), 185 B.C.A.C. 1; 303 W.A.C. 1; 2003 BCCA 397, leave to appeal refused (2004), 330 N.R. 193; 209 B.C.A.C. 318; 345 W.A.C. 318 (S.C.C.), refd to. [para. 84].

Zimmer and Zimmer v. Ringrose (1981), 28 A.R. 69 (C.A.), refd to. [para. 85].

Grealy v. Kuntz, [1996] B.C.J. No. 1470 (C.A.), refd to. [para. 85].

Reid v. Maloney (2011), 515 A.R. 361; 532 W.A.C. 361; 2011 ABCA 355, refd to. [para. 85].

Prevost v. Ali et al. (2011), 371 Sask.R. 166; 518 W.A.C. 166; 2011 SKCA 50, refd to. [para. 85].

Seney v. Crooks et al. (1998), 223 A.R. 145; 183 W.A.C. 145; 1998 ABCA 316, refd to. [para. 89].

Haughian v. Paine (1987), 55 Sask.R. 99 (C.A.), leave to appeal refused (1987), 82 N.R. 393; 62 Sask.R. 160 (S.C.C.), refd to. [para. 89].

Malette v. Shulman (1990), 37 O.A.C. 281 (C.A.), refd to. [para. 89].

Van Dyke v. Grey Bruce Regional Health Centre et al. (2005), 197 O.A.C. 336 (C.A.), leave to appeal refused (2005), 349 N.R. 398; 215 O.A.C. 395 (S.C.C.), refd to. [para. 89].

Lemay v. Peters (2014), 425 N.B.R.(2d) 336; 1107 A.P.R. 336; 2014 NBCA 59, refd to. [para. 89].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, appld. [para. 93].

Ediger v. Johnston et al., [2013] 2 S.C.R. 98; 442 N.R. 105; 333 B.C.A.C. 1; 571 W.A.C. 1; 2013 SCC 18, appld. [para. 94].

Tremblay v. McLauchlan et al. (2001), 155 B.C.A.C. 299; 254 W.A.C. 299; 2001 BCCA 444, refd to. [para. 95].

Westerhof v. Gee Estate (2015), 331 O.A.C. 129; 2015 ONCA 206, appld. [para. 103].

Marchand v. Public General Hospital Society of Chatham et al. (2000), 138 O.A.C. 201 (C.A.), refd to. [para. 107].

Rebizant v. Greenwood et al. (1998), 127 Man.R.(2d) 35 (Q.B.), refd to. [para. 117].

Andison v. Katz (2012), 288 Man.R.(2d) 53; 564 W.A.C. 53; 2012 MBCA 107, refd to. [para. 117].

Statutes Noticed:

Limitation of Actions Act, C.C.S.M., c. L-150, sect. 14(1), sect. 15(2) [para. 9].

Authors and Works Noticed:

Irvine, John C., Osborne, Philip H., and Shariff, Mary J., Canadian Medical Law: An Introduction for Physicians, Nurses and other Health Care Professionals (4th Ed. 2013), p. 55 [para. 80].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), pp. 150 to 152 [para. 86]; 192 [paras. 88, 92]; 193 [para. 91]; 193, fn. 486 [para. 92].

Counsel:

E.B. Eva, for the appellant;

T.J. Hansell and D.A. Ripley, for the respondent.

This appeal was heard on January 15, 2015, by Hamilton, MacInnes and Monnin, JJ.A., of the Manitoba Court of Appeal. Hamilton, J.A., delivered the following decision for the court on July 28, 2015.

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15 practice notes
  • Table of cases
    • Canada
    • Irwin Books The Law of Torts. Sixth Edition
    • June 25, 2020
    ...59 (CA) .................................................................................. 459 Laing v Sekundiak, [2015] MJ No 197 (CA), 2015 MBCA 72, 319 Man R (2d) 268 ..................................................................................... 158 Laing v St Thomas Dragway, [200......
  • M.M. v. B.M.,
    • Canada
    • Court of Queen's Bench of Manitoba (Canada)
    • January 18, 2023
    ...The respondent’s counsel referred to the Manitoba Court of Appeal’s decision in Laing v. Sekundiak, 2015 MBCA 72, approving the admission of evidence from a “participant [22]      Laing involved a preliminary threshold issue, rather th......
  • Ash Apiaries Ltd v Steiner et al, 2019 MBCA 23
    • Canada
    • Court of Appeal (Manitoba)
    • March 15, 2019
    ...of palpable and overriding error (see Housen v Nikolaisen, 2002 SCC 33 at paras 26-30; McIntyre at para 49; and Laing [Laing v Sikundiak, 2015 MBCA 72] at paras See also Olford et al v Springwood Homes Inc, 2019 MBCA 2 at para 9. Analysis and Decision The Cross Appeal [51] The cross appeal ......
  • Yashcheshen v Teva Canada Ltd.,
    • Canada
    • Court of Appeal (Saskatchewan)
    • April 18, 2022
    ...of his or her skill, knowledge, training and experience while observing or participating in such events See also: Laing v Sekundiak, 2015 MBCA 72 at paras 103–108, 319 Man R (2d) 268; Kon Construction Ltd. v Terra Nova Developments Ltd., 2015 ABCA 249 at paras 31–37, 387 DLR (......
  • Request a trial to view additional results
14 cases
  • M.M. v. B.M.,
    • Canada
    • Court of Queen's Bench of Manitoba (Canada)
    • January 18, 2023
    ...The respondent’s counsel referred to the Manitoba Court of Appeal’s decision in Laing v. Sekundiak, 2015 MBCA 72, approving the admission of evidence from a “participant [22]      Laing involved a preliminary threshold issue, rather th......
  • Ash Apiaries Ltd v Steiner et al, 2019 MBCA 23
    • Canada
    • Court of Appeal (Manitoba)
    • March 15, 2019
    ...of palpable and overriding error (see Housen v Nikolaisen, 2002 SCC 33 at paras 26-30; McIntyre at para 49; and Laing [Laing v Sikundiak, 2015 MBCA 72] at paras See also Olford et al v Springwood Homes Inc, 2019 MBCA 2 at para 9. Analysis and Decision The Cross Appeal [51] The cross appeal ......
  • Yashcheshen v Teva Canada Ltd.,
    • Canada
    • Court of Appeal (Saskatchewan)
    • April 18, 2022
    ...of his or her skill, knowledge, training and experience while observing or participating in such events See also: Laing v Sekundiak, 2015 MBCA 72 at paras 103–108, 319 Man R (2d) 268; Kon Construction Ltd. v Terra Nova Developments Ltd., 2015 ABCA 249 at paras 31–37, 387 DLR (......
  • City of Portage la Prairie et al. v. Tower Engineering Group Limited Partnership et al., 2019 MBQB 4
    • Canada
    • Court of Queen's Bench of Manitoba (Canada)
    • January 10, 2019
    ...correct interpretation of s. 15(2) of the Act. The various tests applied in the cases were reviewed by the court in Laing v. Sekundiak, 2015 MBCA 72, 319 Man.R. (2d) 268 (QL), at para. 66 as 66 In my view, these different articulations of the test created under s. 15(2) really say the same ......
  • Request a trial to view additional results
1 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books The Law of Torts. Sixth Edition
    • June 25, 2020
    ...59 (CA) .................................................................................. 459 Laing v Sekundiak, [2015] MJ No 197 (CA), 2015 MBCA 72, 319 Man R (2d) 268 ..................................................................................... 158 Laing v St Thomas Dragway, [200......

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