Murray v. Alberta (Minister of Health) et al., 2007 ABQB 231

JudgeMartin, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateApril 13, 2007
Citations2007 ABQB 231;(2007), 445 A.R. 1 (QB)

Murray v. Alta. (2007), 445 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. AP.122

William Lloyd Murray on behalf of himself and all those members of a class having a claim against the defendants (plaintiff) v. Her Majesty the Queen in Right of Alberta as represented by the Minister of Health, the Calgary Health Region and John Doe and Jane Doe (defendants)

(0601 09319; 2007 ABQB 231)

Indexed As: Murray v. Alberta (Minister of Health) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Martin, J.

April 13, 2007.

Summary:

The plaintiff commenced class proceedings against the Minister of Health, Calgary Health Region and John and Jane Doe (the defendants), alleging a denial of his Charter rights because he was denied funding for a form of hip replacement surgery, known as the Birmingham procedure. Two pre-certification applications were filed. The plaintiff applied for production of certain categories of information. The defendants resisted production and applied to extend the time for filing a defence until 21 days following the certification decision.

The Alberta Court of Queen's Bench dismissed the plaintiff's application for production, holding that it was premature. The court also refused to defer the filing of the defence.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - Section 13 of the Alberta Class Proceedings Act gave the court the power to make "any order it considers appropriate respecting the conduct of a class proceeding to ensure the fair and expeditious determination of the proceeding and, for that purpose, may impose on one or more of the parties any terms or conditions that the Court considers appropriate" - The Alberta Court of Queen's Bench (Martin, J.) stated that "this broad discretion is said to arise in relation to a 'class proceeding', defined elsewhere as a proceeding that has already been certified. This wording has led some courts in other provinces to conclude that s. 13 does not apply pre-certification. In my view, this approach is too restrictive. While it is not necessary to decide the point, the purpose, objectives and logic of the Act appear better served if s. 13 powers are available to a judge pre-certification. A class proceeding may begin as a traditional action but it is a hybrid procedure straddling what the action is and what it seeks to become." - See paragraph 7.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - The Alberta Court of Queen's Bench discussed its jurisdiction with respect to pre-certification applications (e.g., a production order or an order extending time to file a defence) - The court opined that it had the power to make this type of order under s. 13 of the Class Proceedings Act - The court stated that, if it did not have the power under s. 13, that power certainly arose under the Rules of Court and the inherent jurisdiction of the court to govern its own process - Section 41(1) of the Act made the Alberta Rules of Court applicable to class proceedings and rule 41.6 stated that "notwithstanding anything in these Rules, the court may, on application on notice or on its own motion, order the procedures it considers appropriate for a class proceeding under the Act to ensure the fair and expeditious determination of the proceeding and to achieve the objects of the Act" - The court stated that "in summary, each of s. 13 of the Act and Rule 41.6 provide the court with the necessary authority to make the requested orders. In combination and supplemented by the court's inherent jurisdiction, a chambers judge in Alberta has a broad discretion concerning pre-certification procedures" - See paragraphs 5 to 9.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - The plaintiff commenced class proceedings against the Minister of Health, Calgary Health Region and John and Jane Doe (the defendants), alleging a denial of his Charter rights because he was denied funding for a form of hip replacement surgery, known as the Birmingham procedure - Two pre-certification applications were filed - The plaintiff applied for production of certain information and the defendants applied to defer the filing of their defence until 21 days after the certification decision - The Alberta Court of Queen's Bench dismissed the plaintiff's application for production, holding that it was premature - The court also refused to defer the filing of the defence where there was no evidence of unfairness if the defendant was required to file a statement of defence before and then again after certification if it became necessary.

Cases Noticed:

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 205 D.L.R.(4th) 19; 2001 SCC 68, refd to. [para. 3].

MacKinnon v. National Money Mart Co. et al., [2005] 1 W.W.R. 233; (2004), 203 B.C.A.C. 85; 332 W.A.C. 85; 2004 BCCA 472, refd to. [para. 7].

Pearson v. Inco Ltd. et al., [2002] O.T.C. Uned. 381; 22 C.P.C.(5th) 167 (Sup. Ct.), refd to. [para. 13].

Pardy et al. v. Bayer Inc. (2003), 230 Nfld. & P.E.I.R. 325; 682 A.P.R. 325; 2003 NLSCTD 130, refd to. [para. 15].

Endean v. Canadian Red Cross (1997), 68 A.C.W.S.(3d) 817 (B.C.S.C.), refd to. [para. 18].

Samos Investments Inc. v. Pattison et al., [2001] B.C.T.C. 440; 2001 BCSC 440, refd to. [para. 18].

Mangan v. Inco Ltd. (1996), 10 O.T.C. 231; 30 O.R.(3d) 90; 1996 CarswellOnt 2704 (Gen. Div.), refd to. [para. 24].

Hoffman et al. v. Monsanto Canada Inc. et al. (2002), 227 Sask.R. 63; 287 W.A.C. 63; 200 D.L.R.(4th) 542; 2002 CarswellSask 654; 2002 SKCA 120, refd to. [para. 24].

Maclean et al. v. Telus Corp. et al. (2005), 214 B.C.A.C. 301; 353 W.A.C. 301; 2005 CarswellBC 1732; 2005 BCCA 338, refd to. [para. 24].

Alberta et al. v. C.H.S. et al. (2005), 385 A.R. 119 (Q.B.), refd to. [Appendix].

Always Travel Inc. et al. v. Air Canada et al., [2003] F.T.R. Uned. 110; 2003 FCT 212, refd to. [Appendix].

Anderson v. Wilson (1996), 18 O.T.C. 79; 7 C.P.C.(4th) 244 (Gen. Div.), refd to. [Appendix].

Statutes Noticed:

Class Proceedings Act, S.A. 2003, c. C-16.5, sect. 13 [para. 6]; sect. 41(1) [para. 8].

Rules of Court (Alta.), rule 41.6 [para. 8].

Counsel:

James G. Shea and Norman Anderson (Shea Nerland Calnan LLP), for the plaintiff;

G. Alan Meikle, Q.C. (Alberta Justice, Legal Services Division), for Her Majesty the Queen in Right of Alberta as represented by the Minister of Health;

J.W. Rose, Q.C. (Fraser Milner Casgrain), for the Calgary Health Region.

These applications were heard before Martin, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on April 13, 2007.

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