Oberg v. Foothills Provincial General Hospital et al., (1999) 232 A.R. 263 (CA)

• Judge: Conrad, Hunt and Sulatycky, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 03, 1999
• Citations: (1999), 232 A.R. 263 (CA)

Oberg v. Foothills Hospital (1999), 232 A.R. 263 (CA);

   195 W.A.C. 263

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. MR.045

Dianna Oberg and Douglas Oberg (plaintiffs/appellants) v. The Foothills Provincial General Hospital, Dr. Paul Martyn, Dr. John G.M. Robertson, Dr. W. Kinston, Dr. Richard St. Onge, John Doe and Jane Doe (defendants/respondents)

(98-17711)

Indexed As: Oberg v. Foothills Provincial General Hospital et al.

Alberta Court of Appeal

Conrad, Hunt and Sulatycky, JJ.A.

March 3, 1999.

Summary:

The plaintiffs sued a hospital and various physicians for damages resulting from a hysterectomy. The defendants applied suc­cessfully to strike out the statement of claim. The plaintiffs appealed.

The Alberta Court of Appeal allowed the appeal.

Practice - Topic 2393

Writ of summons, endorsements, originat­ing summons and originating notices - Nullities and irregularities - What consti­tutes an irregularity - The plaintiffs sued a hospital and various physicians for dam­ages - The statement of claim was not served within the prescribed time - The plaintiffs had changed solicitors and sought an extension of time for service under the new rule 11(6) - A Master of the Alberta Court of Queen's Bench granted a renewal order - The clerk of the court failed to endorse the renewed statement of claim as required by rule 11(7) - The Alberta Court of Appeal held that the unendorsed re­newed statement of claim was a curable ir­regularity under rule 558, where non-compliance with the rules could be cured without prejudice to the other party - See paragraphs 25 to 30.

Practice - Topic 2659

Service - Generally - Waiver of service or abridgment of time for service - The plaintiffs sued a hospital and various phy­sicians for damages - The statement of claim was not served within the prescribed time - The plaintiffs had changed solici­tors and sought an extension of time for service under the new rule 11(6) - The Alberta Court of Appeal granted renewal of the statement of claim - The court held that the plaintiffs had provided enough information from which it could be inferred that the application for renewal of the statement of claim was not simply a delay tactic - In any event, the defendants had waived the irregularity and could not claim that loss of the limitation period defence amounted to prejudice - Even if waiver did not apply, the application to set aside the renewal order was not made within a reasonable time as required by rule 559 - See paragraphs 3 to 24.

Cases Noticed:

Marchischuk v. Dominion Industrial Sup­plies Ltd. et al., [1991] 2 S.C.R. 61; 125 N.R. 306; 73 Man.R.(2d) 271; 3 W.A.C. 271; 80 D.L.R.(4th) 670, refd to. [para. 18].

Cyre-Wills v. Couture (1992), 120 A.R. 315; 8 W.A.C. 315 (C.A.), refd to. [para. 18].

Bridgeland Riverside Community Associ­ation v. Calgary (City) (1982), 37 A.R. 26 (C.A.), refd to. [para. 27].

Statutes Noticed:

Rules of Court (Alta.), rule 11 [para. 7]; rule 558 [para. 26]; rule 559 [para. 23].

Counsel:

A.G. Park, Q.C., for the appellants;

V.R. Prather, for the respondents.

This appeal was heard before Conrad, Hunt and Sulatycky, JJ.A., of the Alberta Court of Appeal. On March 3, 1999, Conrad, J.A., delivered the following judgment for the court.