Milne v. Workers' Compensation Board (Alta.) et al., (2013) 561 A.R. 313

• Judge: Paperny, Slatter and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Friday November 08, 2013
• Citations: (2013), 561 A.R. 313;2013 ABCA 379

Milne v. WCB (2013), 561 A.R. 313; 594 W.A.C. 313 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. NO.046

Barry John Milne (appellant/plaintiff) v. Dr. Priscilla Barnes and Dr. Maxwell G. Plageman (respondents/defendants) and The Workers' Compensation Board (not a party to the appeal/defendant)

(1201-0154-AC; 2013 ABCA 379)

Indexed As: Milne v. Workers' Compensation Board (Alta.) et al.

Alberta Court of Appeal

Paperny, Slatter and Veldhuis, JJ.A.

November 8, 2013.

Summary:

The plaintiff was injured in a workplace accident. He brought a workers' compensation claim. The Workers' Compensation Board referred him to the Columbia Health Centre (CHC) where he was assessed and admitted to the work hardening program. He suffered an aggravation of his injuries. He was admitted to a pain management program which also made his injuries worse. He sued the Board, Dr. Barnes and Dr. Plageman, who provided advice to the Board (i.e., letters), alleging a breach of the duty of care owed to him. The defendant doctors applied for summary dismissal of the action against them.

A Master of the Alberta Court of Queen's Bench, in a decision reported at 461 A.R. 117, held that the claims against the doctors that could proceed to trial were limited to the allegations that they were negligent in their handling of the plaintiff's case, breached a duty to be fair and neutral in their approach to and handling of his case and defamed him. The claim against Dr. Barnes in relation to the plaintiff's attendance at the CHC was dismissed as it was statute barred by the passage of time. The claim against the doctors in conspiracy was dismissed. The plaintiff argued that the errors and misstatements made in the letters of both doctors amounted to malice. He said there were errors in the doctors' letters, there were facts and conclusions from others who handled his file that were not included in their reports and that they did not have or ignored information that they should have considered. He said that they did all of this deliberately, they used their positions to prevent his medical care, and failed to remain neutral in their assessment and recommendations. Dr. Barnes and Dr. Plageman applied for summary judgment of the claim against them on the basis of the statutory privilege contained in s. 34(4) of the Workers' Compensation Act.

The Alberta Court of Queen's Bench, in a decision reported at 541 A.R. 112, allowed the application. The plaintiff appealed.

The Alberta Court of Appeal dismissed the appeal.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The plaintiff was injured in a workplace accident - He brought a workers' compensation claim - The Workers' Compensation Board referred him to the Columbia Health Centre (CHC) where he was assessed and admitted to the work hardening program - He suffered an aggravation of his injuries - He was admitted to a pain management program which also made his injuries worse - He sued the Board, Dr. Barnes and Dr. Plageman, who provided advice to the Board (i.e., letters), alleging a breach of the duty of care owed to him - The defendant doctors applied for summary dismissal of the action against them - A Master held that the claims against the doctors that could proceed to trial were limited to the allegations that they were negligent in their handling of the plaintiff's case, breached a duty to be fair and neutral in their approach to and handling of his case and defamed him - The claim against Dr. Barnes in relation to the plaintiff's attendance at the CHC was dismissed as it was statute barred by the passage of time - The claim against the doctors in conspiracy was dismissed - The plaintiff argued that the errors and misstatements made in the letters of both doctors amounted to malice - He said there were errors in the doctors' letters, there were facts and conclusions from others who handled his file that were not included in their reports and that they did not have or ignored information that they should have considered - He said that they did all of this deliberately, they used their positions to prevent his medical care, and failed to remain neutral in their assessment and recommendations - Dr. Barnes and Dr. Plageman applied for summary judgment of the claim against them on the basis of the statutory privilege contained in s. 34(4) of the Workers' Compensation Act - The application judge allowed the application - The plaintiff appealed - The Alberta Court of Appeal dismissed the appeal - The court rejected the plaintiff's estoppel argument - "Repeated applications on the same or a similar record are dealt with as an abuse of process, not as an issue estoppel, and are controlled by costs sanctions" - No error had been shown.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Practice - Topic 5702] .

Workers' Compensation - Topic 6885

Practice - Medical exam - Medical reports - [See Practice - Topic 5702 ].

Cases Noticed:

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 5].

Pocklington Foods Inc. v. Alberta (Provincial Treasurer) (1995), 165 A.R. 155; 89 W.A.C. 155; 28 Alta. L.R.(3d) 96 (C.A.), refd to. [para. 6].

QC Data Petroleum Services Ltd. v. International Datashare Corp. (2000), 261 A.R. 155; 225 W.A.C. 155; 2000 ABCA 55, refd to. [para. 6].

Mainwaring v. Alberta, [2000] A.R. Uned. 1; 2000 ABCA 12, refd to. [para. 6].

Mason (V.K.) Construction Ltd. v. Canadian General Insurance Group Ltd. (1998), 116 O.A.C. 272; 42 O.R.(3d) 618 (C.A.), refd to. [para. 6].

Ashak v. Family Responsibility Office (Ont.) (2013), 307 O.A.C. 103; 115 O.R.(3d) 401; 2013 ONCA 375, refd to. [para. 6].

Counsel:

J.R. Nickerson, Q.C., for the appellant;

E.B. Mellett and B.D. Comfort, for the respondents.

This appeal was heard on November 8, 2013, by Paperny, Slatter and Veldhuis, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered from the bench, by Slatter, J.A., on November 13, 2013.