Laing v. Sekundiak, 2013 MBQB 17

• Judge: Mainella, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 21, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 17;(2013), 286 Man.R.(2d) 273 (QB)

Laing v. Sekundiak (2013), 286 Man.R.(2d) 273 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. FE.006

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

(CI 04-01-38434; 2013 MBQB 17)

Indexed As: Laing v. Sekundiak

Manitoba Court of Queen's Bench

Winnipeg Centre

Mainella, J.

January 21, 2013.

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 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 297 Man.R.(2d) 181, denied the motion. Sekundiak appealed.

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

Courts - Topic 1127

Masters - Appeals from - Standard of review - The Manitoba Court of Queen's Bench stated that "According to Queen's Bench Rule 62.01(13), an appeal from a decision of a Master to a judge is a 'fresh hearing'. Deference is not owed to the decision of the Master even on findings of fact or the exercise of discretion. The judge is entitled to exercise an independent discretion. ... However, a Master's decision is not an inconsequential opinion to be unread or ignored on an appeal. Masters are judicial officers with particular expertise in interlocutory proceedings in civil litigation. It is for the judge hearing the appeal to decide how much consideration to give to the Master's decision in light of the Master's reasons, the record both on appeal and before the Master, error(s) committed by the Master, and any other relevant matter. ... Such consideration by a judge of the Master's decision in no way equates with deference. The cardinal rule is that on an appeal of a Master's decision, no limitations exist on the judge exercising their discretion independently." - See paragraphs 84 to 86.

Limitation of Actions - Topic 9615

Enlargement of time period - Application for - Bars - [See first Practice - Topic 3083 ].

Practice - Topic 3083

Applications and motions - Applications - Delay - Effect of - In June 2004, Laing applied for leave under the Limitation of Actions Act (Act) to commence a negligence action against Sekundiak, a doctor who performed an operation on Laing in March 1999 - 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 denied the motion - As this was a second motion to dismiss for delay and the first motion's denial was not appealed, apart from the issue of prejudice, Sekundiak could not now be heard to complain about the period of delay before the first motion - Further, it was significant that this was an application for an extension of time - This proceeding was "unique and exceptional" - Laing had made exceptional efforts to advance her claim against considerable odds - Since 2008, there had been a relatively steady progression by Laing and her counsel to advance the litigation where the issues, both legal and evidentiary, were complex - There was no evidence of specific prejudice to Sekundiak - To deprive Laing of her right to have her application determined would be unjust - Sekundiak appealed - The Manitoba Court of Queen's Bench dismissed the appeal - The court did not share the Master's categorical view that the issues were both legally and factually complex - The court was satisfied only that the subject matter of one issue was factually complex - Laing's failure to retain an expert to address this matter was not due to neglect; rather, it was a tactical choice in light of available options - Whether the totality of the admissible evidence in the applicant's affidavit material met the requirements of s. 15(2) of the Act was not an issue to be decided on this appeal - Laing's delay in perfecting her application due to conducting "research" after April 2010 was unreasonable - However, Sekundiak had not proved that the delay caused actual prejudice and any inherent prejudice was minimal.

Practice - Topic 3083

Applications and motions - Applications - Delay - Effect of - 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 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 denied the motion - Sekundiak appealed - Queen's Bench Rule 38.12 governed a motion to dismiss an application for delay - The Manitoba Court of Queen's Bench held that as the wording of rule 38.12 was similar to the rule governing a motion to dismiss an action for delay, appropriate analogy could be made to it - The court referred to the considerations set out in a prior case dealing with a motion to dismiss for delay (Law Society of Manitoba v. Eadie (1988, Man. C.A.)) - The court stated that "The one qualification with adopting this standard for dismissing an application to extend a limitation period for delay was stated ... in J.B.T. [2003, Man. Q.B.]: '... [I]n addition to the individual facts of any particular case, the assessment of delay in an application of this nature must take into account that the application is time-sensitive.'" - See paragraphs 89 to 91.

Practice - Topic 3083

Applications and motions - Applications - Delay - Effect of - 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 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 denied the motion - Sekundiak appealed - The Manitoba Court of Queen's Bench stated that "Inherent prejudice is a broader concept than just the respondent's ability to defend the application or any action that may commence if leave is granted. ... The respondent has been faced with the prospect of litigation for over eight years. It was not argued on this appeal that the claim has affected his personal or professional life to such an extent as to warrant dismissal of the application on that basis. This aspect of inherent prejudice is not an issue in this case." - See paragraph 151.

Practice - Topic 3090

Applications and motions - Applications - Dismissal of - Grounds - [See second and third Practice - Topic 3083 ].

Cases Noticed:

ABI Biotechnology Inc. v. Apotex Inc. et al. (2008), 231 Man.R.(2d) 259; 437 W.A.C. 259; 2008 MBCA 146, refd to. [para. 84].

Jacobson Estate v. Freed et al. (1994), 97 Man.R.(2d) 197; 79 W.A.C. 197 (C.A.), refd to. [para. 85].

Raymond v. Manitoba Public Insurance Corp. (2012), 281 Man.R.(2d) 150; 2012 MBQB 201, refd to. [para. 85].

Dubois v. Manitoba Lotteries Corp. et al. (2009), 251 Man.R.(2d) 5; 478 W.A.C. 5; 2009 MBCA 108, refd to. [para. 87].

J.B.T. et al. v. Victoria General Hospital et al., [2003] Man.R.(2d) Uned. 81; 2003 MBQB 196, refd to. [para. 89].

Manitoba Lotteries Corp. v. Dominion Construction and Development Inc., [2004] Man.R.(2d) Uned. 48; 2004 MBQB 112, refd to. [para. 89].

Law Society of Manitoba v. Eadie, [1988] 6 W.W.R. 354; 54 Man.R.(2d) 1 (C.A.), refd to. [para. 90].

Orzechowski v. Bass et al. (2012), 279 Man.R.(2d) 189; 2012 MBQB 159, refd to. [para. 97].

Rebizant v. Greenwood et al. (1998), 127 Man.R.(2d) 35 (Q.B.), dist. [para. 101].

Kaufman and Custom Engineered Products Ltd. v. Gardner and Custom Steel Products Inc. (1991), 77 Man.R.(2d) 176 (Q.B.), refd to. [para. 110].

Armstrong v. McCall et al. (2006), 213 O.A.C. 229; 28 C.P.C.(6th) 12 (C.A.), refd to. [para. 110].

Torok v. Shnider et al. (1994), 95 Man.R.(2d) 284; 70 W.A.C. 284 (C.A.), refd to. [para. 112].

Danrus Construction Ltd. v. Underwood McLellan Ltd. et al., [1997] O.A.C. Uned. 549; 17 C.P.C.(4th) 89 (C.A.), refd to. [para. 113].

Funk v. Hiebert et al. (2007), 221 Man.R.(2d) 67; 2007 MBQB 257, refd to. [para. 113].

Frank v. Alpert, [1971] S.C.R. 637, refd to. [para. 125].

Fegol v. National Post Co. et al. (2007), 212 Man.R.(2d) 294; 389 W.A.C. 294; 2007 MBCA 27, refd to. [para. 132].

Scotswood Properties Ltd. v. Smith Carter Partners Ltd. et al. (1992), 78 Man.R.(2d) 229; 16 W.A.C. 229 (C.A.), refd to. [para. 133].

Mauer v. McDougall et al. (2001), 153 Man.R.(2d) 259; 238 W.A.C. 259; 2001 MBCA 2, refd to. [para. 140].

Bodykevich v. University of Manitoba et al. (1997), 120 Man.R.(2d) 299 (Q.B.), refd to. [para. 140].

Mousseau v. Gauthier et al. (1996), 112 Man.R.(2d) 161 (Q.B.), refd to. [para. 146].

Pankhurst v. Matz et al. (1991), 71 Man.R.(2d) 271 (C.A.), refd to. [para. 151].

Hansen v. Manitoba Hydro (1993), 85 Man.R.(2d) 261; 41 W.A.C. 261 (C.A.), refd to. [para. 151].

Statutes Noticed:

Rules of Court (Man.), Queen's Bench Rules, rule 38.12 [para. 88].

Counsel:

E. Beth Eva, for the applicant;

Nicole M. Watson, for the respondent.

This appeal was heard by Mainella, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on January 21, 2013.