Paniccia Estate v. Toal, 2012 ABQB 367

• Judge: Shelley, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 20, 2012
• Jurisdiction: Alberta
• Citations: 2012 ABQB 367;(2012), 541 A.R. 300 (QB)

Paniccia Estate v. Toal (2012), 541 A.R. 300 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JN.076

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 (plaintiffs) v. Dr. Stephen Toal (defendant)

(1003 07117; 2012 ABQB 367)

Indexed As: Paniccia Estate et al. v. Toal

Alberta Court of Queen's Bench

Judicial District of Edmonton

Shelley, J.

June 5, 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 below, dealt with the costs issues accordingly.

Practice - Topic 7082

Costs - Party and party costs - Preparation for trial (incl. discovery) - In a medical malpractice suit, the plaintiffs sought $12,000 for the cost to prepare for trial (i.e., double Schedule C, Column 3), claiming that this was a complex trial that warranted an elevated cost award - The Alberta Court of Queen's Bench held that an elevated court preparation award was appropriate in this case - The documentary evidence was substantial - The expert evidence was extensive, detailed, and multifactoral - That expert evidence was often interrelated - The trial was of significant length; however the complexity of the issues before the court was, to some extent, under-reflected in the number of days of trial - See paragraphs 12 to 16.

Practice - Topic 7141

Costs - Party and party costs - Disbursements - Cost of expert advice - In a medical malpractice suit, the plaintiffs abandoned a claim to shorten and simplify the trial, respecting which their expert was to testify - The plaintiffs claimed a disbursement associated with that expert - The defendant resisted, claiming that a cost associated with an abandoned claim could not be reasonable - The Alberta Court of Queen's Bench ordered the defendant to pay the disbursement - See paragraphs 7 to 11.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The plaintiffs received a damage award greater than their settlement offer - Party and party costs were awarded, with costs relating to a late special damages issue to be assessed on a solicitor-client basis - The plaintiffs sought double the costs - The Alberta Court of Queen's Bench held that the offer was reasonable and could have ended the action with considerable savings to the defendant - The timing was appropriate given that it was, in effect a counter-offer - The court, therefore, awarded double costs for all steps after the offer, including double solicitor-client costs - The court stated that the defendant's conduct in relation to the special damages issue was an instance where the court should express its disapproval and seek to disassociate itself from litigant misconduct - Double solicitor-client costs ($26,000) exceeded the full indemnification amount ($16,182.52), but in this instance that additional "punitive" aspect and quantum was appropriate - See paragraphs 29 to 41.

Practice - Topic 7245.4

Costs - Party and party costs - Offers to settle - Time of offer - A common law practice had evolved under the Old Alberta Rules of Court that a judge could, at his or her discretion, order double costs for any trial steps after an informal offer (i.e., "Calderbank offers") - At issue was whether the new rule that a formal offer had to be made at least 10 days prior to the start of trial in order to trigger cost consequences (rule 4.24(1)(b)), applied to all offers to settle a dispute, formal or informal - The Alberta Court of Queen's Bench stated that informal/Calderbank offers were an effective mechanism to assist parties in meeting the objectives and responsibilities identified in the Rules - The court therefore concluded that the common law approach remained appropriate - See paragraphs 29 to 40.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - [See Practice - Topic 7243 ].

Practice - Topic 7470.20

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Offer to settle - [See Practice - Topic 7243 ].

Cases Noticed:

Mitchell Estate v. Labow et al. (1995), 54 A.C.W.S.(3d) 173 (Ont. Gen. Div.), affd. [1998] O.A.C. Uned. 118; 78 A.C.W.S.(3d) 182 (C.A.), refd to. [para. 7].

Hetu v. Traff et al. (1999), 252 A.R. 304; 1999 ABQB 826, refd to. [para. 9].

Forsberg et al. v. Naidoo et al. (2011), 525 A.R. 65; 2011 ABQB 705, refd to. [para. 10].

Brown v. Silvera (2010), 488 A.R. 22; 2010 ABQB 224, refd to. [para. 28].

Chapell v. Canadian Pacific Railway Co. (2011), 504 A.R. 361; 2011 ABQB 74, refd to. [para. 31].

Rubin v. Gendemann (2011), 518 A.R. 128; 2011 ABQB 466, refd to. [para. 31].

Calderbank v. Calderbank, [1976] Fam. 93; [1975] 3 W.L.R 586; [1975] 3 All E.R. 333, refd to. [para. 32].

McAteer et al. v. Devoncroft Developments Ltd. et al. (2004), 340 A.R. 1; 2003 ABQB 425, refd to. [para. 32].

Alberta Permit Pro et al. v. Booth et al. (2008), 459 A.R. 320; 2008 ABQB 167, refd to. [para. 32].

Mahe et al. v. Boulianne, [2010] A.R. Uned. 25; 21 Alta. L.R.(5th) 277; 2010 ABCA 74, refd to. [para. 32].

Envision Edmonton Opportunities Society et al. v. Edmonton (City) (2011), 507 A.R. 275; 2011 ABQB 29, refd to. [para. 38].

Max Sonnenberg Inc. v. Stewart, Smith (Can.) Ltd., [1987] 2 W.W.R. 75; 48 Alta. L.R.(2d) 367 (Q.B.), refd to. [para. 42].

Fullerton et al. v. Matsqui (District) et al. (1992), 19 B.C.A.C. 284; 24 W.A.C. 284; 74 B.C.L.R.(2d) 311 (C.A.), refd to. [para. 43].

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. 43].

Counsel:

B.A. Guido and A.W. Heil (Odishaw & Guido), for the plaintiffs;

V.R. Prather and A.L. Froese (Bennett Jones LLP), for the defendant.

This application was heard on April 20, 2012, before Shelley, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on June 5, 2012.