Paniccia Estate et al. v. Toal,

• Judge: Berger,C,Hillier
• Neutral Citation: 2012 ABCA 397
• Citation: (2012), 539 A.R. 349,2012 ABCA 397,539 AR 349,(2012), 539 AR 349,539 A.R. 349
• Date: 31 October 2012
• Court: Court of Appeal (Alberta)

Paniccia Estate v. Toal (2012), 539 A.R. 349; 561 W.A.C. 349 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JA.006

Angela Paniccia, as Executrix for the Estate of Lino Paniccia for the Benefit of the Estate of Lino Paniccia, Angela Paniccia, Danny Paniccia, Melissa Paniccia, Selena Waugh, Jason Paniccia and Her Majesty the Queen in Right of Alberta (respondents/appellants by cross-appeal/plaintiffs) v. Dr. Stephen Toal (appellant/respondent by cross-appeal/defendant)

(1203-0039-AC; 2012 ABCA 397)

Indexed As: Paniccia Estate et al. v. Toal

Alberta Court of Appeal

Côté and Berger, JJ.A., and Hillier, J.(ad hoc)

December 21, 2012.

Summary:

Paniccia died of diffuse gastric cancer. His estate sued his family doctor (Toal) for damages for medical malpractice (i.e., failure to diagnose and treat the cancer and inform him properly). Liability was at issue. The parties had an agreement regarding damages, although it was left for the court to determine Paniccia's likely age of retirement, when, if ever he could have returned to work and his household duties, and his life expectancy given the nature of his diagnosis.

The Alberta Court of Queen's Bench, in a decision reported 521 A.R. 34, concluded that the doctor's negligence delayed identification and treatment of Paniccia's diffuse gastric cancer. Proper diagnosis would not on a balance or probabilities have led to successful treatment of the cancer (i.e., at best his condition would have been terminal once identified). The doctor's negligence shortened Paniccia's life by six months. Even if diagnosed earlier he would not have returned to work or resumed employment, survived to retire or resumed household duties. After trial, the doctor refused to pay the estate bereavement damages (Fatal Accidents Act (FAA), s. 8), relying on an obiter statement in the trial judge's reasons for judgment that s. 8 bereavement damages were not available where negligence shortens a life (para. 47). The doctor also refused to pay certain special damages for "alternative therapies". The parties returned to the trial judge for a resolution of the dispute.

The Alberta Court of Queen's Bench (trial judge), in a "follow-up" decision reported 521 A.R. 73, considered that the statement of law in paragraph 47 was incorrect. The judge held that she was entitled to, on her own authority, apply rule 9.13(a) of the Rules of Court, and revise the trial decision to remove paragraph 47. The court concluded that: "... not only is a FAA, s. 8 bereavement award generally available where negligence causes a person to die at an earlier point, but also that, in the case of Mr. Paniccia, the negligence of Dr. Toal caused a significant loss of life expectancy so that, to use the language of the FAA, 'death of a person' was 'caused by a wrongful act, neglect or default'". Thus the doctor had no basis to refuse to pay the s. 8 bereavement damages. The judge declined to consider the doctor's arguments on special damages at this late date, thus the quantum of special damages agreed to was payable to the patient. The court ordered the defendant doctor to pay the costs associated with the special damages issue on a solicitor-client basis. Several costs issues remained in dispute.

The Alberta Court of Queen's Bench, in the decision reported 541 A.R. 300, dealt with the costs issues accordingly. The doctor appealed, raising, inter alia, two proposed issues of law. The estate cross-appealed, arguing that the amount of shortening of life was under-calculated.

The Alberta Court of Appeal declined to deal with the merits of the new issues raised by the doctor, although the court expressed an opinion on one of the issues. In the result, the court dismissed the main appeal and cross-appeal.

Damages - Topic 1001

Mitigation - General principles - In a medical malpractice case, the trial judge found that the doctor's negligence caused the plaintiff to die six months earlier from terminal cancer, than if he had received proper care and treatment - The doctor appealed, arguing, inter alia, that the disbursements for American therapies were not caused by the tort found (i.e., they were for a cure not just to prolong life) - The Alberta Court of Appeal refused to consider the disbursement argument as it was raised too late in the proceedings - However, the court opined that there was no authority establishing that where expenses were incurred to fight an emergency (i.e., mitigate a loss) they were entirely irrecoverable because motives were mixed - Such a rule would be unfair - Attempts to mitigate need only be reasonable - They did not have to be exclusively devoted to mitigate one aspect of the emergency and useless for the other - See paragraphs 16 to 101.

Damages - Topic 1022

Mitigation - In tort - What constitutes reasonable remedial measures - [See Damages - Topic 1001 ].

Damages - Topic 1067

Mitigation - Particular matters - Medical malpractice - [See Damages - Topic 1001 ].

Practice - Topic 1335

Pleadings - The issues - Issues to be raised must be pleaded (incl. time for) - In a medical malpractice case, the trial judge found that the doctor's negligence caused the plaintiff to die six months earlier from terminal cancer, than if he had received proper care and treatment - In final argument, after the close of evidence, the doctor had raised two legal arguments, not previously pled, one respecting compensation under the Fatal Accidents Act for shortening of life and another respecting whether disbursements for American therapies were caused by the tort found (i.e., whether they were for a cure not just to prolong life) - The trial judge refused to consider the arguments - The doctor appealed - The Alberta Court of Appeal held that final argument was far too late to inject two large new unpleaded issues which would obviously entitle or even require either party to lead new evidence - See paragraphs 16 to 101.

Medicine - Topic 2101

Discipline for professional misconduct - Evidence - General - In a medical malpractice case, the trial judge found that the doctor's negligence caused the plaintiff to die six months earlier from terminal cancer, than if he had received proper care and treatment - The plaintiff's estate appealed, arguing that six months was too short - The doctor claimed that the time was over-calculated because of the inability of the statistics relied on by the trial judge to provide any concrete evidence on how long the plaintiff would likely have lived and because of the use of a median figure to estimate survival - The Alberta Court of Appeal dismissed the estate's appeal - There was no palpable and overriding error - The court also dismissed the doctor's appeal - The trial judge had evidence to support her conclusion and the court saw no error in relying upon it - See paragraphs 102 to 122.

Practice - Topic 7427.2

Costs - Solicitor and client costs - Measure of - Double costs - [See Practice - Topic 7454 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - A patient died of cancer - His estate sued his doctor, alleging medical malpractice - The parties had a pre-trial agreement respecting special damages should liability be found - The trial judge found the doctor negligent - After the trial, the doctor refused to pay certain special damages for "alternative therapies" - The matter returned to court - The trial judge refused to entertain the special damages issue - The court ordered the doctor to pay the patient's costs to respond to the special damages argument on a solicitor-client basis - Reasons given were that this was litigation by instalments (i.e., raising late certain legal issues), misconduct, failure to identify the real issues and lengthening the proceedings - The costs were doubled because of an offer - The doctor appealed - The Alberta Court of Appeal held that there was no palpable and overriding error either in the award or in the doubling of the costs - See paragraphs 123 to 158.

Practice - Topic 9010

Appeals - Restrictions on argument on appeal - General - [See Practice - Topic 1335 ].

Cases Noticed:

Dow AgroSciences Canada Inc. v. Philom Bios Inc., [2007] A.R. Uned. 36; 57 C.P.R.(4th) 369; 2007 ABCA 122, refd to. [para. 32].

Online Constructors Ltd. v. Speers Construction Inc. (2012), 522 A.R. 227; 544 W.A.C. 227; 2012 ABCA 132, refd to. [para. 32].

M.N.P. v. Whitecourt General Hospital et al. (2006), 397 A.R. 333; 384 W.A.C. 333; 64 Alta. L.R.(4th) 1; 2006 ABCA 245, refd to. [para. 32].

M.N.P. v. Bablitz - see M.N.P. v. Whitecourt General Hospital et al.

Magnan v. Brandt Tractor Ltd. (2008), 440 A.R. 35; 438 W.A.C. 35; 2008 ABCA 345, refd to. [para. 32].

McDonald v. Fellows, Doherty Brothers Realty Ltd. and Wilkinson (1979), 17 A.R. 330; 105 D.L.R.(3d) 434 (C.A.), refd to. [para. 35].

Dominion Bridge v. Philip T Dodge (1936), 1 W.W.R. 94 (P.C. (Ex)), refd to. [para. 35].

Canadian Northern Railway v. Baker (1951), 68 C.R.T.C. 320 (S.C.C.), refd to. [para. 37].

Hastie v. Hastie, [2004] A.R. Uned. 330; 2004 ABCA 306, refd to. [para. 37].

C.B.E. v. J.A.E., [2004] A.R. Uned. 505; 2004 ABCA 406, refd to. [para. 37].

Maksymew et al. v. Maksymew (1986), 51 Sask.R. 62 (C.A.), refd to. [para. 37].

Vogler v. Matzick (1988), 33 B.C.L.R.(2d) 82 (C.A.), refd to. [para. 37].

Lax Kw'alaams Indian Band et al. v. Canada (Attorney General) et al., [2011] 3 S.C.R. 535; 423 N.R. 3; 313 B.C.A.C. 3; 533 W.A.C. 3; 2011 SCC 56, refd to. [para. 60].

L.C. et al. v. Alberta et al., (2011), 509 A.R. 43; 2011 ABQB 12, refd to. [para. 63].

Balogun v. Pandher (2010), 474 A.R. 258; 479 W.A.C. 258; 2010 ABCA 40, refd to. [para. 64].

Apex Corp. et al. v. Ceco Developments Ltd. (2008), 429 A.R. 110; 421 W.A.C. 110; 88 Alta. L.R.(4th) 26; 2008 ABCA 125, refd to. [para. 83].

Granville Savings and Mortgage Corp. v. Slevin et al., [1993] 4 S.C.R. 279; 160 N.R. 243; 88 Man.R.(2d) 145; 51 W.A.C. 145, refd to. [para. 85].

Lloyd's and Scottish Finance v. Modern Cars etc., [1966] 1 Q.B. 764, refd to. [para. 85].

Wilson v. United Counties Bank, [1920] A.C. 102 (H.L.), refd to. [para. 85].

The Oropesa, [1943] P. 32; [1943] 1 All E.R. 211 (C.A.), refd to. [para. 85].

The Sivand, [1998] 2 Lloyd's Reports 97 (C.A.), refd to. [para. 85].

Calmonton Investments Ltd. v. Tangye (1988), 87 A.R. 22 (C.A.), refd to. [para. 86].

Banco de Portugal v. Waterlow & Sons, [1932] A.C. 452; 101 L.J.K.B. 417 (H.L.), refd to. [para. 86].

Lorenz Holdings Ltd. v. Yukon Construction Ltd. and Simcoe & Erie General Insurance (1981), 34 A.R. 336 (C.A.), refd to. [para. 86].

Eagle Resources Ltd. v. MacDonald (2002), 299 A.R. 395; 266 W.A.C. 395; 2002 ABCA 12, refd to. [para. 135].

Big Loop Cattle Co. et al. v. Energy Resources Conservation Board (Alta.) et al., [2010] A.R. Uned. 783; 2010 ABCA 408, refd to. [para. 135].

Cunningham Estate v. Stahl Diesel Sales Ltd. et al. (1992), 127 A.R. 227; 20 W.A.C. 227; 2 Alta. L.R.(3d) 133; 6 C.P.C.(3d) 137 (C.A.), refd to. [para. 135].

Simpson v. The Co-operators (1998), 228 A.R. 96; 188 W.A.C. 96; 1998 ABCA 302, refd to. [para. 135].

291617 Alberta Ltd. et al. v. Kretschmer et al. (1997), 193 A.R. 180; 135 W.A.C. 180 (C.A.), refd to. [para. 135].

Fullerton et al. v. Matsqui (District) et al. (1992), 19 B.C.A.C. 284; 34 W.A.C. 284; 74 B.C.L.R.(2d) 305 (C.A.), refd to. [para. 154].

Boje Estate, Re (2005), 363 A.R. 288; 343 W.A.C. 288; 250 D.L.R.(4th) 271; 2005 ABCA 73, refd to. [para. 154].

Statutes Noticed:

Rules of Court (Alta.), rule 109 [para. 22]; rule 121 [para. 24]; rule 126 [para. 26]; rule 127 [para. 25].

Rules of Court (Alta.) (2010), rule 4.10, rule 4.14 [para. 62]; rule 13.6(2)(b), rule 13.6(3), 13.12(2) [para. 26]; rule 15.2(2), 15.6 [para. 27].

Authors and Works Noticed:

McGregor, Harvey, Damages (17th Ed. 2003), paras. 7-83 to 7-88 [para. 83].

Waddams, S.M., The Law of Damages (2011) (Looseleaf), paras. 15.290 to 15.320 [para. 83].

Counsel:

B.A. Guido and T.J. Rostad, for the respondents/appellants by cross-appeal/plaintiffs;

A.L. Friend, Q.C., V.R. Prather and A.L. Froese, for the appellant/respondent by cross-appeal/defendant.

This appeal was heard on October 31, 2012, before Côté and Berger, JJ.A., and Hillier, J.(ad hoc), of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court on December 21, 2012.