Phillip v. Whitecourt General Hospital et al., (2004) 359 A.R. 259 (QB)

• Judge: Watson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 21, 2004
• Citations: (2004), 359 A.R. 259 (QB);2004 ABQB 761

Phillip v. Whitecourt Hospital (2004), 359 A.R. 259 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. NO.087

Montana Niketa Phillip, a minor by her next friend Yvonne Bertha Phillip, Yvonne Bertha Phillip, and Jay Bernard Phillip (plaintiffs) v. The Whitecourt General Hospital, Whitecourt Health Care Centre, Aspen Regional Health Authority #11, Harvey A. Bablitz, Pierre Morissette, University of Alberta Hospital, University of Alberta Hospitals Board, Capital Health Authority, Douglas K. Still, Linda M. Casey, and David Schiff (defendants)

(9603 01800; 2004 ABQB 761)

Indexed As: Phillip v. Whitecourt General Hospital et al.

Alberta Court of Queen's Bench

Edmonton

Watson, J.

October 21, 2004.

Summary:

The plaintiff, Montana, a minor, was born on January 24, 1995. Her release from hospital was approved the next day by Dr. Schiff. On January 26, Montana's parents noticed that she was not eating or urinating and took her to Whitecourt General Hospital (WGH). Dr. Bablitz and Dr. Morissette, the latter a second-year physician under Dr. Bablitz, saw Montana that evening. Dr. Bablitz decided not to admit Montana and ordered her release. In his report, Dr. Bablitz opined that her situation was "apparently beta hemolytic streptococcal sepsis". On the morning of January 27, 1995, Montana stopped breathing properly and turned blue. She was rushed back to WGH by ambulance, suffering from a hypoglycemia crisis. Later that day she became critically ill and was transferred to the University of Alberta Hospital (UAH) Neonatal Intensive Care Unit. On February 18, 1995, Montana was released from UAH. Over the next few months it became apparent that Montana was developmentally delayed and had vision problems. In 1998, Montana was diagnosed as having congenital endocrine problems (hypo-pituitarism, hypo-thyroidism and optic nerve hypoplasia) and began treatment for these conditions. Montana and her parents (the plaintiffs) sued both hospitals and a number of the doctors involved in Montana's care, including Drs. Schiff, Bablitz and Morissette.

The Alberta Court of Queen's Bench, in a decision reported at 359 A.R. 201, dismissed the actions against Dr. Schiff and Dr. Morissette. The court found that Dr. Bablitz was negligent in his treatment of Montana. However, the court held that Montana's developmental delay was not caused by the hypoglycemia crisis, but by the congenital conditions which developed pre-natally and manifested themselves as hypo-pituitarism, hypo-thyroidism and optic nerve hypoplasia. These conditions were not caused by the hypoglycemia, but rendered Montana subject to hypoglycemia. The court opined that the failure to treat these endocrine problems during the first two or three years of her life was a significant cause of the current state of her developmental delay. The court invited submissions from counsel as to whether Dr. Bablitz's liability for damages should extend to the whole of the developmental delay on the basis of de facto causation by the direct influence that his incorrect interpretation of the hypoglycemia crisis and its circumstances had on the subsequent handling of Montana's situation. The court also reserved on the other issues of law and mixed fact and law pending further submissions by counsel on causation, foreseeability, remoteness, intervening causation, etc. On the resumption of the case some months later, counsel for the remaining defendant, Dr. Bablitz, contended that the conclusions of fact made earlier expanded beyond the issues set out by the pleadings of the plaintiffs (i.e., there was adjudicative unfairness). Dr. Bablitz argued that the conclusions of fact embarrassed his ability to invoke the principle of intervening causation in order to deflect all or part of his liability. The plaintiffs disputed the unfairness claims and also addressed the issues of causation, foreseeability and damages.

The Alberta Court of Queen's Bench, in the decision reported below, held that there was no adjudicative unfairness in the procedure adopted by the court. As to causation, the court concluded that Dr. Bablitz's negligence was the "cause in fact" and "legal" or "proximate" and foreseeable cause of the additional damage in terms of developmental delay which Montana suffered. The court held also that there was no intervening cause or novus actus interveniens that would relieve Dr. Bablitz of the liability that followed from his negligence. Therefore, Dr. Bablitz was liable for all damages resulting from the increased cognitive deficiencies experienced by the infant from her first visit to the hospital until her condition was finally diagnosed in 1998. The court calculated damages accordingly, including a nonpecuniary general damage award of $260,000 in favour of Montana.

Damage Awards - Topic 369

Injury and death - Disease or illness - Hypoglycemic crisis - In 1995, a two day old infant was taken back to the hospital by her parents because she was not eating or wetting - The infant was seen by Dr. Bablitz who decided not to admit her - The next day the infant suffered a hypoglycemia crisis, became critically ill and was admitted to hospital for extensive medical treatment between January 26 and February 18, 1995 - In his report, Dr. Bablitz opined that she was suffering from streptococcal sepsis - Subsequently as the infant grew, it became apparent that she was developmentally delayed and blind - In 1998, it was discovered that the infant suffered from congenital endocrine problems that developed before birth, which could have been treated early in life - The infant and her parents sued Dr. Bablitz - The Alberta Court of Queen's Bench found that Dr. Bablitz was negligent in misinterpreting the hypoglycemic crisis and this negligence distracted and delayed subsequent treating physicians from properly diagnosing and treating the infant's congenital problems between 1995 and 1998 - The court assessed nonpecuniary general damages of $25,000 for the damages suffered by the infant in relation to the hypoglycemic episode between January 26 and February 18, 1995 - See paragraphs 353 to 358.

Damage Awards - Topic 369

Injury and death - Disease or illness - Hypoglycemic crisis - In 1995, a two day old infant was taken back to the hospital by her parents because she was not eating or wetting - The infant was seen by Dr. Bablitz who decided not to admit her - The next day the infant suffered a hypoglycemia crisis, became critically ill and was admitted to hospital for extensive medical treatment between January 26 and February 18, 1995 - Dr. Bablitz opined that the infant suffered from streptococcal sepsis - Subsequently as she grew, it became apparent that she was developmentally delayed and blind - In 1998 it was discovered that the infant suffered from congenital endocrine problems that developed before birth, which could have been treated early in life - The infant and her parents sued Dr. Bablitz - The Alberta Court of Queen's Bench found that Dr. Bablitz was negligent in misinterpreting the hypoglycemic crisis and this negligence distracted and delayed subsequent treating physicians from properly diagnosing and treating the infant's congenital problems between 1995 and 1998 - The court held that Dr. Bablitz was liable for all damages resulting from the increase in cognitive deficiencies experienced by the infant from her first visit to the hospital until her condition was finally diagnosed in 1998 - Considering that the infant was profoundly disabled, the court awarded non-pecuniary general damages of $260,000 for the infant, plus $100,000 for the father and $200,000 for the mother - See paragraphs 451 to 597.

Damage Awards - Topic 580

Torts - Injury to third parties - Damages for personal care of injured person - [See second Damage Awards - Topic 369 ].

Damage Awards - Topic 582

Torts - Injury to third parties - Mental shock - In 1995, a two day old infant was taken back to the hospital by her parents because she was not eating or wetting - The infant was seen by Dr. Bablitz who decided not to admit her - The next day the infant suffered a hypoglycemia crisis, became critically ill and was admitted to hospital for extensive medical treatment between January 26 and February 18, 1995 - Dr. Bablitz opined that she was suffering from streptococcal sepsis - Subsequently as she grew, it became apparent that she was developmentally delayed and blind - In 1998 it was discovered that the infant suffered from congenital endocrine problems that developed before birth, which could have been treated early in life - The infant and her parents sued Dr. Bablitz - The Alberta Court of Queen's Bench found that Dr. Bablitz was negligent in misinterpreting the hypoglycemic crisis and this negligence delayed subsequent treating physicians from properly diagnosing and treating the infant's congenital problems between 1995 and 1998 - The court held that the negligence of Dr. Bablitz caused serious and prolonged mental distress substantially beyond the norm of ordinary concerns, stressors, anxieties and fears for the parents in this situation - Dr. Bablitz, having had direct contact with the parents, and noting the circumstances and their concerns and the history, it was foreseeable that if a major health crisis was inflicted upon the baby of the type which was foreseeable, the parents could suffer such an extreme form of mental distress - The court concluded, therefore, that the infant's parents fell within the class of persons who could claim for mental distress or nervous shock - The court awarded each parent $20,000 for this head of damages for the time period up to February, 1995 - See paragraphs 369 to 399.

Damage Awards - Topic 634

Torts - Injury to the person - Medical or dental malpractice - [See both Damage Awards - Topic 369 and Damage Awards - Topic 582 ].

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - "Thin skull" or "crumbling skull" - In 1995, a two day old infant was taken back to the hospital by her parents because she was not eating or wetting - The infant was seen by Dr. Bablitz who decided not to admit her - The next day the infant suffered a hypoglycemia crisis, became critically ill and was admitted to hospital for extensive medical treatment - Dr. Bablitz opined that she was suffering from streptococcal sepsis - Subsequently as the infant grew, it became apparent that she was developmentally delayed and blind - In 1998 it was discovered that the infant suffered from congenital endocrine problems that developed before birth, which could have been treated early in life - The infant and her parents sued Dr. Bablitz for damages, claiming that this was a "thin skull" situation where Dr. Bablitz should be responsible for all damages, rather than a "crumbling skull" situation where he would only be responsible for the additional damage caused by his negligence -The Alberta Court of Queen's Bench held that Dr. Bablitz was negligent in misinterpreting the hypoglycemic crisis and this negligence delayed subsequent treating physicians from properly diagnosing and treating the infant's congenital problems between 1995 and 1998 - The court held that in this case it was not particularly helpful to consider whether the infant was a "thin skull" or "crumbling skull" where the infant would have had a mild degree of mental impairment associated with her congenital vision condition in any event - The court discussed the approach that it took to assessing the infant's damages in this case - See paragraphs 160 to 176, 299 and 413 to 454.

Damages - Topic 1557

General damages - General damages for personal injury - Calculation and method of assessment - Life expectancy - In 1995, a two day old infant was taken back to the hospital by her parents because she was not eating or wetting - The infant was seen by Dr. Bablitz who decided not to admit her - The next day the infant suffered a hypoglycemia crisis, became critically ill and was admitted to hospital for extensive medical treatment - Dr. Bablitz opined that she was suffering from streptococcal sepsis - Subsequently as she grew, it became apparent that she was developmentally delayed and blind - In 1998 it was discovered that the infant suffered from congenital endocrine problems that developed before birth, which could have been treated early in life - The infant and her parents sued Dr. Bablitz for damages - The Alberta Court of Queen's Bench held that Dr. Bablitz was negligent in misinterpreting the hypoglycemic crisis and this negligence delayed subsequent treating physicians from properly diagnosing and treating the infant's congenital problems - In calculating the infant's damages, the court used a life span of 65 - The court stated that by age 65, the reasonable likelihood was that whatever else happened to her in the meantime, she would be a ward of the state and entitled to its full intervening protection - See paragraphs 409 to 412.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - In 1995, a two day old infant was taken back to the hospital by her parents because she was not eating or wetting - The infant was seen by Dr. Bablitz who decided not to admit her - The next day the infant suffered a hypoglycemia crisis, became critically ill and was admitted to hospital for extensive medical treatment - Dr. Bablitz opined that she was suffering from streptococcal sepsis - Subsequently as she grew, it became apparent that she was developmentally delayed and blind - In 1998 it was discovered that the infant suffered from congenital endocrine problems that developed before birth, which could have been treated early in life - The infant and her parents sued Dr. Bablitz - Dr. Bablitz alleged a lack of causation - The Alberta Court of Queen's Bench held that Dr. Bablitz's negligence caused the hypoglycemic crisis and that it was that crisis which was the functional and effective cause of the delay by other physicians between 1995 and 1998 in diagnosing and addressing the infant's underlying congenital problems - The court held that Dr. Bablitz's negligence was "cause in fact" and "legal" or "proximate" and foreseeable cause of the additional damage in terms of developmental delay which the infant suffered - Further, there was no intervening cause or novus actus interveniens that would relieve Dr. Bablitz of that liability that followed from his negligence - See paragraphs 158 to 295.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - In 1995, a two day old infant was taken back to the hospital by her parents because she was not eating or wetting - The infant was seen by Dr. Bablitz who decided not to admit her - The next day the infant suffered a hypoglycemia crisis, became critically ill and was admitted to hospital for extensive medical treatment - Dr. Bablitz opined that she was suffering from streptococcal sepsis - Subsequently as she grew, it became apparent that she was developmentally delayed and blind - In 1998 it was discovered that the infant suffered from congenital endocrine problems that developed before birth, which could have been treated early in life - The infant and her parents sued Dr. Bablitz - Dr. Bablitz alleged a lack of causation - The Alberta Court of Queen's Bench held that Dr. Bablitz's negligence caused the hypoglycemic crisis and that it was this crisis which was the functional and effective cause of the delay by other physicians in diagnosing and addressing the infant's underlying congenital problems - The court held that the conduct of Dr. Bablitz was a significant cause of the evolution of brain harm to the infant from 1995 to 1998 - Further, it was likely that the infant's underlying condition would have been discovered in 1995 if she had not undergone such a crisis but instead had episodes of treated hypoglycemia - The harm to the infant between 1995 and 1998, would likely not have occurred "but for" the negligence of Dr. Bablitz - Alternatively, the court was satisfied on a balance of probabilities that the creation of the circumstances for the infant which clouded the issue of her underlying problems was a significant and material contribution to what followed - Either way, causation in fact was proven - See paragraphs 160 to 176, 201 to 231 and 242 to 295.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - In 1995, an infant who was a few days old was taken back to the hospital by her parents because she was not eating or wetting - The infant was seen by Dr. Bablitz who decided not to admit the infant - The next day she suffered a hypoglycemia crisis, became critically ill and had to be rushed back to hospital for extensive medical treatment - Dr. Bablitz opined that she was suffering from streptococcal sepsis - Subsequently as she grew, it became apparent that she was developmentally delayed and blind - In 1998 it was discovered that the infant suffered from congenital endocrine problems that developed before birth, which could have been treated during her first two or three years of life - The infant and her parents (the plaintiffs) sued Dr. Bablitz - The Alberta Court of Queen's Bench held that Dr. Bablitz was negligent in his treatment of the infant, and that negligence was a significant cause of the hypoglycemia crisis - The court held further that as a direct and virtually exclusive result of the incorrect interpretation of the hypoglycemia crisis and its circumstances, other doctors who treated the infant between 1995 and 1998 were distracted from correctly diagnosing and treating the congenital problems - The failure to treat the congenital problems was found to be a significant cause of the infant's developmental delay - Dr. Bablitz argued that the failure of subsequent physicians to properly diagnose the infant was an intervening cause which broke the chain of causation - The plaintiffs argued that the chain of causation was not broken and Dr. Bablitz's negligence and the resulting health crisis remained a causative force in the failure to treat the infant's underlying condition until 1998 - The Alberta Court of Queen's Bench held that there was no intervening cause or novus actus interveniens that would relieve the doctor of the liability that followed from his negligence - See paragraphs 185 to 199, 225 to 241 and 283 to 295.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - In 1995, an infant who was a few days old was taken back to the hospital by her parents because she was not eating or wetting - The infant was seen by Dr. Bablitz who decided not to admit the infant - The next day she suffered a hypoglycemia crisis, became critically ill and had to be rushed back to hospital for extensive medical treatment - Dr. Bablitz opined that she was suffering from streptococcal sepsis - Subsequently as she grew, it became apparent that she was developmentally delayed and blind - In 1998 it was discovered that the infant suffered from congenital endocrine problems that developed before birth, which could have been treated during her first two or three years of life - The infant and her parents (the plaintiffs) sued Dr. Bablitz - The Alberta Court of Queen's Bench held that Dr. Bablitz was negligent in his treatment of the infant, and that negligence was a significant cause of the hypoglycemia crisis - The court held further that as a direct and virtually exclusive result of the incorrect interpretation of the hypoglycemia crisis and its circumstances, other doctors who treated the infant between 1995 and 1998 were distracted from correctly diagnosing and treating the congenital problems - The failure to treat the congenital problems was found to be a significant cause of the infant's developmental delay - The plaintiffs argued the Dr. Bablitz was liable for the whole of the infant's developmental delay - The doctor argued that to impose liability on him for the infant's problems through 1998 would be, in effect, to find him vicariously liable for her congenital condition and the failure of the subsequent doctors to diagnose and address her underlying condition between 1995 and 1998 - The Alberta Court of Queen's Bench agreed with the defendant's counsel that the liability of Dr. Bablitz should not be extended on the basis of vicarious liability - See paragraphs 225 to 235.

Medicine - Topic 4250

Liability of practitioners - Negligence or fault - Failure to diagnose an illness or condition (incl. improper diagnosis) - [See first Medicine - Topic 4241.2 ].

Medicine - Topic 4255.3

Liability of practitioners - Negligence or fault - Discharge of patient (incl. failure to admit patient) - [See first Medicine - Topic 4241.2 ].

Medicine - Topic 4256.1

Liability of practitioners - Negligence or fault - Vicarious liability - [See fourth Medicine - Topic 4241.2 ].

Practice - Topic 5013

Conduct of trial - General principles - Adjudicative fairness - In a medical malpractice suit involving a developmentally delayed child, the trial judge determined that a doctor was negligent in his treatment of a hypoglycemia crisis shortly after the child's birth - The trial judge also held that this negligence distracted subsequent treating physicians from properly diagnosing the infant's congenital endocrine problems which were the cause of her developmental delay - The trial judge called for further submissions as to the doctor's liability for the handling of the infant's case during the years after he initially treated her (i.e., de facto causation) - When proceedings resumed, the doctor argued that the judge's conclusions of fact in the earlier proceedings resulted in adjudicative unfairness because the judge's finding that some of the other doctors subsequently involved with the infant's treatment was non-tortious, embarrassed his ability to lead evidence of intervening causation (i.e., the defendant alleged that the issue of intervening cause had already been adjudicated against him) - The Alberta Court of Queen's Bench (i.e., the trial judge) was not persuaded that there would be adjudicative unfairness in the second hearing process in determining the difference between the "original position" for the child and the "injured position" either as a matter of proximate or legal causation, or as a matter affecting the calculation of damages in relation to both of which topics foreseeability was an issue - See paragraphs 128 to 157.

Practice - Topic 5013

Conduct of trial - General principles - Adjudicative fairness - In a medical malpractice suit involving a developmentally delayed child, the trial judge determined that a doctor was negligent in his treatment of a hypoglycemia crisis shortly after the child's birth - The trial judge also held that this negligence distracted subsequent treating physicians from properly diagnosing the infant's congenital endocrine problems which were the cause of her developmental delay - The trial judge called for further submissions as to the doctor's liability for the handling of the infant's case during the years after he initially treated her (i.e., de facto causation) - When proceedings resumed, the doctor argued that the judge's conclusions of fact in the earlier proceedings resulted in adjudicative unfairness as to the right to make full answer and defence (i.e., that the judge effectively amended the pleadings, adjusting the duty of care applicable to the doctor and changed the case he had to meet) - The Alberta Court of Queen's Bench (i.e., the trial judge) held that he had a duty to inform counsel of the possible implications of his fact conclusions where those implications raised issues of law or mixed fact and law for which no argument had been presented - However, the court stated that the principle of audi alteram partem, absent issue prejudice, was met in this case by providing the opportunity to make further submissions - The judge stated that he was persuaded that no general principles of law operated to prevent the judge from carrying out his legal duty to act on the facts as he found them - See paragraphs 72 to 127.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - The Alberta Court of Queen's Bench discussed the test for causation - The court stated that the causation analysis is "robust and pragmatic" - The court stated that courts may use the "but for" test for causation which involves an inquiry as to whether the damage would have occurred "but for" the defendant's negligence or may use the alternative test where the plaintiff proves that the defendant's negligence caused "or materially contributed" to the injury - The court stated that it did not see the two approaches as completely discrete or that the former trumped the latter in all but some difficult to define category of hard cases - The principle behind both approaches was that a tortfeasor will be accountable for the loss if the tortfeasor's contribution to the loss was so significant as to be necessary to the outcome and was not merely some trivial part of the overall matrix of causes that may be involved - Proof of causation, however, does not have to be "scientific" - See paragraphs 242 to 246.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - The Alberta Court of Queen's Bench discussed the "but for" and "material contribution" tests for causation - The court stated that the "but for" test implied that even if there were other factors involved in the coming into existence of the harm sued about, the tortfeasor's conduct was causative if it was necessary to that outcome (i.e., "but for" did not mean "exclusive", rather in effect, "necessary") - Similarly, the "material contribution" test implied that even if there were other causes, the contribution by the tortfeasor was significant or important to the outcome (i.e., it also meant in effect, "necessary") - The court emphasized that it used the word "necessary" in this respect not as a term of art, but simply as a term helping to explain that the involvement of the tortfeasor in the causation of the harm must be at such a significant or important level that it is proper in law or policy to hold the tortfeasor liable - See paragraphs 247 to 249.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - The Alberta Court of Queen's Bench discussed the "but for" and "material contribution" tests for causation - The court stated that it saw no substantive conflict between the two ways causation might be ascertained - The main object of the exercise was to find a principled basis, consistent with relevant policy considerations of the law, for holding the tortfeasor liable or for exempting the alleged tortfeasor from liability - In proving that the tort caused the damage, the plaintiff must prove that the tort was a necessary feature of the events that caused the damage - In one situation, it might be that the plaintiff can specifically show that the damage would not have happened if the tort had not happened - This is essentially a circumstantial form of proof of causation - In another situation, it might be that the plaintiff can show that the conduct said to be tortious was in actuality a material contributor to the damage - This is a direct form of proof of causation - See paragraphs 250 to 252.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - [See second Medicine - Topic 4241.2 ].

Torts - Topic 60

Negligence - Causation - Foreseeability - [See first Medicine - Topic 4241.2 ].

Torts - Topic 62

Negligence - Causation - Intervening causes (novus actus interveniens) - [See first Medicine - Topic 4241.2 ].

Cases Noticed:

Lindahl Estate et al. v. Olsen et al. (2004), 360 A.R. 310; 2004 ABQB 639, refd to. [para. 46, footnote 6].

Allen v. University Hospitals Board et al. (2002), 312 A.R. 59; 281 W.A.C. 59; 2002 ABCA 195, refd to. [para. 51, footnote 37].

Crawford v. Penney et al., [2003] O.T.C. 16 (Sup. Ct.), affd. [2004] O.A.C. Uned. 433 (C.A.), refd to. [para. 52, footnote 38].

Wilson v. Swanson, [1956] S.C.R. 804; 5 D.L.R.(2d) 113; 1956 CarswellBC 184, refd to. [para. 66, footnote 41].

Lapointe v. Hôpital Le Gardeur et al. - see Lapointe v. Chevrette.

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262, refd to. [para. 66, footnote 42].

Keller v. Penkoske et al. (1999), 256 A.R. 1 (Q.B.), refd to. [para. 66, footnote 43].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81, refd to. [para. 75, footnote 46].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [2002] 2 S.C.R. 522; 287 N.R. 203; 2002 SCC 41, refd to. [para. 75, footnote 47].

McDonald v. Fellows, Doherty Brothers Realty Ltd. and Wilkinson (1979), 17 A.R. 330 (C.A.), refd to. [para. 78, footnote 48].

Poulos v. Caravelle Homes Ltd. et al. (1997), 196 A.R. 138; 141 W.A.C. 138 (C.A.), refd to. [para. 78, footnote 49].

475878 Alberta Ltd. et al. v. Help-U-Sell Inc. et al. (2004), 348 A.R. 182; 321 W.A.C. 182; 2004 ABCA 138, refd to. [para. 81, footnote 50].

Lam v. Sorochan Estate (2000), 259 A.R. 270 (Q.B.), refd to. [para. 87, footnote 52].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, reving (2003), 142 O.A.C. 149 (C.A.), refd to. [para. 91, footnote 53].

Murphy v. Stasiuk (1995), 44 C.P.C.(3d) 200; 1995 CarswellOnt 1339 (Gen. Div.), refd to. [para. 93, footnote 54].

Dirom v. Perera et al. (2004), 372 A.R. 50; 2004 ABQB 657, refd to. [para. 93, footnote 55].

Pinder v. Sproule et al. (2003), 333 A.R. 132; 2003 ABQB 330, refd to. [para. 94, footnote 56].

N.M. v. Drew Estate (2003), 330 A.R. 233; 299 W.A.C. 233; 2003 ABCA 231, refd to. [para. 94, footnote 56].

R. v. Domstad (L.M.) (2001), 285 A.R. 105; 2001 ABQB 179, refd to. [para. 101, footnote 58].

R. v. Forsythe (1986), 70 A.R. 294 (C.A.), refd to. [para. 101, footnote 58].

R. v. Allender (B.W.F.), [1997] 2 S.C.R. 333; 214 N.R. 296; 94 B.C.A.C. 161; 152 W.A.C. 161, affing. (1996), 70 B.C.A.C. 241; 115 W.A.C. 241 (C.A.), refd to. [para. 101, footnote 59].

Amoco Canada Petroleum Co. et al. v. Propak Systems Ltd. et al. (2001), 281 A.R. 185; 248 W.A.C. 185; 2001 ABCA 110, leave to appeal denied (2002), 292 N.R. 396; 312 A.R. 398; 281 W.A.C. 398 (S.C.C.), refd to. [para. 102, footnote 60].

J.M. et al. v. Bradley et al. (2004), 187 O.A.C. 201 (C.A.), refd to. [para. 102, footnote 61].

Kane v. University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 106, footnote 62].

Consolidated Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69, [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321, refd to. [para. 108, footnote 63].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, refd to. [para. 111, footnote 65].

Tremblay v. Commission des affaires sociales et autres, [1992] 1 S.C.R. 952; 136 N.R. 5; 47 Q.A.C. 169, refd to. [para. 111, footnote 66].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al., [2001] 1 S.C.R. 221; 265 N.R. 2; 140 O.A.C. 201; 2001 SCC 4, refd to. [para. 112, footnote 67].

R. v. Araujo (A.), [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 113, footnote 68].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 113, footnote 69].

Saif Ali v. Sydney Mitchell & Co., [1980] A.C. 198; [1978] 3 W.L.R. 849; [1978] 3 All E.R. 1033 (H.L.), refd to. [para. 116, footnote 70].

Autodesk Incorporated et al. v. Dyason et al., [1993] 176 C.L.R. 300 (Aust. H.C.), refd to. [para. 117, footnote 72].

Project Blue Sky Incorporated v. Australian Broadcasting Authority, [1998] H.C.A. 28; 194 C.L.R. 355; 153 A.L.R. 490 (H.C.), refd to. [para. 118, footnote 73].

Coleman v. Power, [2004] H.C.A. 39 (Aust. H.C.), refd to. [para. 119, footnote 74].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 123, footnote 75].

R. v. Finta, [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241, refd to. [para. 123, footnote 76].

Swietlinski v. Ontario (Attorney General), [1994] 3 S.C.R. 481; 172 N.R. 321; 75 O.A.C. 161, refd to. [para. 123, footnote 77].

R. v. Skalbania (N.M.), [1997] 3 S.C.R. 995; 220 N.R. 349; 99 B.C.A.C. 81; 162 W.A.C. 81, refd to. [para. 123, footnote 78].

R. v. Karaibrahimovic (J.J.) (2002), 303 A.R. 181; 273 W.A.C. 181; 2002 ABCA 102, refd to. [para. 124, footnote 79].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371; 2004 SCC 27, refd to. [para. 124, footnote 80].

R. v. Faid, [1983] 1 S.C.R. 265; 46 N.R. 461; 42 A.R. 308, refd to. [para. 124, footnote 81].

R. v. Farrant, [1983] 1 S.C.R. 124; 46 N.R. 337; 21 Sask.R. 271, refd to. [para. 124, footnote 82].

R. v. McCune (M.B.) (1998), 116 B.C.A.C. 267; 190 W.A.C. 267 (C.A.), refd to. [para. 124, footnote 82].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 124, footnote 82].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 124, footnote 83].

R. v. Knight (J.D.) et al., [2003] 1 S.C.R. 156; 302 N.R. 60; 327 A.R. 121; 296 W.A.C. 121; 2003 SCC 15, refd to. [para. 126, footnote 84].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 144, footnote 85].

Wickberg v. Patterson (1997), 196 A.R. 43; 141 W.A.C. 43 (C.A.), refd to. [para. 147, footnote 87].

Penner v. Mitchell (1978), 10 A.R. 555 (C.A.), refd to. [para. 150, footnote 88].

Santoro v. Raban (2000), 265 A.R. 1; 2000 ABQB 285, refd to. [para. 151, footnote 89].

Rhine v. Millan et al. (2000), 263 A.R. 201; 2000 ABQB 212, refd to. [para. 152, footnote 90].

Smith v. Leech Brain & Co., [1961] 3 All E.R. 1159; [1962] 2 Q.B. 405 (Eng. Q.B.), refd to. [para. 162, footnote 92].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1, refd to. [para. 163, footnote 93].

Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound No. (No. 1)), [1961] A.C. 388; [1961] 1 All E.R. 404 (P.C.), refd to. [para. 163, footnote 94].

Briffett v. Gander & District Hospital Board et al. (1996), 137 Nfld. & P.E.I.R. 271; 428 A.P.R. 271 (Nfld. C.A.), refd to. [para. 163, footnote 95].

S.F.P. v. MacDonald et al. (1999), 234 A.R. 273 (Q.B.), refd to. [para. 164, footnote 96].

Cotic v. Gray - see Cotic Estate v. Izquierdo Estate.

Cotic Estate v. Izquierdo Estate (1981), 2 O.A.C. 191 (C.A.), affd. (1983), 2 O.A.C. 187; 51 N.R. 42 (S.C.C.), refd to. [para. 165, footnote 97].

Walker Estate et al. v. York Finch General Hospital et al. [2001] 1 S.C.R. 647; 268 N.R. 68; 145 O.A.C. 302; 2001 SCC 23, refd to. [para. 166, footnote 99].

Meyers v. Stanley et al. (2003), 333 A.R. 292; 2003 ABQB 468, refd to. [para. 166, footnote 100].

Alderson et al. v. Callaghan et al. (1998), 111 O.A.C. 141 (C.A.), refd to. [para. 167, footnote 101].

Mizzi v. Hopkins (2003), 171 O.A.C. 161 (C.A.), refd to. [para. 167, footnote 102].

Hotson v. East Berkshire Health Authority, [1987] A.C. 750; 80 N.R. 95 (H.L.), refd to. [para. 174, footnote 104].

E.D.G. v. Hammer et al. (2003), 310 N.R. 1; 187 B.C.A.C. 193; 307 W.A.C. 193; 2003 SCC 52, refd to. [para. 176, footnote 105].

Bartlett v. Winnipeg Electric Railway Co. and Canadian Northern Railway Co., [1919] 59 S.C.R. 352; [1920] 1 W.W.R. 95; 1919 CarswellMan 89, refd to. [para. 177, footnote 106].

Hughes v. Advocate (Lord), [1963] 1 All E.R. 706; [1963] A.C. 837 (H.L.), refd to. [para. 179, footnote 107].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 179, footnote 108].

Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound (No. 2)), [1967] A.C. 617 (P.C.), refd to. [para. 179, footnote 109].

School District of Assiniboine South No. 3 v. Hoffer, [1971] 4 W.W.R. 746; 21 D.L.R.(3d) 608 (Man. C.A.), affd. (1973), 1 N.R. 32; 40 D.L.R.(3d) 480 (S.C.C.), refd to. [para. 180, footnote 110].

Kalogeropoulos and Millette v. Cote (Minister of Highways) and Ontario Provincial Police Force, [1976] 1 S.C.R. 595; 3 N.R. 341, refd to. [para. 180, footnote 111].

Abbott v. Kasza, [1976] 4 W.W.R. 20; 71 D.L.R.(3d) 581; 1976 CarswellAlta 86 (C.A.), refd to. [para. 180, footnote 112].

Duwyn et al. v. Kaprielian (1979), 22 O.R.(2d) 736; 7 C.C.L.T. 121; 94 D.L.R.(3d) 424; 1978 CarswellOnt 577 (C.A.), refd to. [para. 181, footnote 113].

Leonard et al. v. Knott and Dundee, [1980] 1 W.W.R. 673; 1979 CarswellBC 7345 (C.A.), refd to. [para. 183, footnote 114].

Robinson v. Post Office et al., [1974] 2 All E.R. 737 (C.A.), refd to. [para. 184, footnote 115].

Price v. Milawski (1977), 82 D.L.R.(3d) 130; 18 O.R.(2d) 113; 1 L.M.Q. 303; 1977 CarswellOnt 644 (C.A.), refd to. [para. 184, footnote 116].

Chesher et al. v. Monaghan, 1999 CarswellOnt 1021 (C.A.), refd to. [para. 184, footnote 117].

Von Koenigsloew v. Kelly (1997), 98 B.C.A.C. 267; 161 W.A.C. 267 (C.A.), refd to. [para. 185, footnote 118].

Mercer v. Gray, [1941] O.R. 127; [1941] 3 D.L.R. 564; 1941 CarswellOnt 14 (C.A.), refd to. [para. 187, footnote 119].

Thompson v. Toorenburgh, [1972] 6 W.W.R. 119; 29 D.L.R.(3d) 608 (B.C.S.C.), affd. (1973), 50 D.L.R.(3d) 717 (B.C.C.A.), leave to appeal denied (1973), 50 D.L.R.(3d) 717 (S.C.C.), refd to. [para. 188, footnote 120].

Ship Oropesa, Re, [1943] 1 All E.R. 211 (C.A.), refd to. [para. 190, footnote 121].

Yepremian v. Scarborough General Hospital et al. (1980), 110 D.L.R.(3d) 513; 13 C.C.L.T. 105; 28 O.R.(2d) 494; 3 L. Med. Q. 278; 1980 CarswellOnt 612 (C.A.), leave to appeal denied (1980), 120 D.L.R.(3d) 337 (S.C.C.), refd to. [para. 192, footnote 122].

Katzman v. Yaeck (1982), 37 O.R.(2d) 500; 27 C.P.C. 280; 136 D.L.R.(3d) 536 (C.A.), refd to. [para. 195, footnote 123].

Papp et al. v. Leclerc (1977), 16 O.R.(2d) 158; 77 D.L.R.(3d) 536 (C.A.), refd to. [para. 196, footnote 124].

Webb v. Barclays Bank plc et al., [2001] E.W.J. No. 3722; 2001 EWCA Civ. 1141, refd to. [para. 197, footnote 125].

Dorion v. Roberge et autres, [1991] 1 S.C.R. 374; 124 N.R. 1; 39 Q.A.C. 81, refd to. [para. 198, footnote 126].

Law Estate v. Simice (1995), 67 B.C.A.C. 89; 111 W.A.C. 89 (C.A.), refd to. [para. 198, footnote 127].

Lawrence v. Bateman (1996), 162 N.S.R.(2d) 257; 485 A.P.R. 257 (S.C.), refd to. [para. 198, footnote 128].

McArdle Estate v. Cox et al. (2003), 327 A.R. 129; 296 W.A.C. 129; 2003 ABCA 106, refd to. [para. 203, footnote 133].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 2002 SCC 15, refd to. [para. 206, footnote 134].

Allen v. University Hospitals Board et al. (2002), 312 A.R. 59; 281 W.A.C. 59; 2002 ABCA 195, affing. (2000), 276 A.R. 345; 2000 ABQB 965, refd to. [para. 206, footnote 135].

Plas-Tex Canada Ltd. et al. v. Dow Chemical of Canada Ltd. et al. (2004), 357 A.R. 139; 334 W.A.C. 139; 2004 ABCA 309, refd to. [para. 207, footnote 136].

University Hospital Board v. Lepine, [1966] S.C.R. 561; 57 D.L.R.(2d) 701; [1966] 57 W.W.R. 5; 1966 CarswellAlta 45, refd to. [para. 216, footnote 139].

Glasgow Corp. v. Muir, [1943] A.C. 448, refd to. [para. 216, footnote 139].

Angus et al. v. Edmonton (City) (1977), 3 A.R. 116 (C.A.), refd to. [para. 216, footnote 140].

Lem v. Barotto Sports Ltd. and Ponsness-Warren Inc. (1976), 1 A.R. 556 (C.A.), refd to. [para. 216, footnote 141].

Hamilton v. Papakura District Council et al. (2002), 295 N.R. 163; 2002 UKPC 9, refd to. [para. 218, footnote 142].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 230, footnote 144].

John Doe v. Bennett et al., [2004] 1 S.C.R. 436; 318 N.R. 146; 236 Nfld. & P.E.I.R. 215; 700 A.P.R. 215; 2004 SCC 17, refd to. [para. 230, footnote 145].

Rothwell v. Raes (1988), 54 D.L.R.(4th) 193; 66 O.R.(2d) 449; 1988 CarswellOnt 1085 (H.C.), affd. (1990), 76 D.L.R.(4th) 280; 2 O.R.(3d) 332; 1990 CarswellOnt 1062 (C.A.), leave to appeal refused [1991] 1 S.C.R. xiii; 79 D.L.R.(4th) vii, refd to. [para. 231, footnote 147].

Rayner v. Knickle and Kingston (1991), 88 Nfld. & P.E.I.R. 214; 274 A.P.R. 214 (P.E.I.C.A.), refd to. [para. 231, footnote 148].

R. v. Pinske, [1989] 2 S.C.R. 979; 100 N.R. 399, affing. (1988), 6 M.V.R.(2d) 19; 30 B.C.L.R.(2d) 114; 1988 CarswellBC 313 (C.A.), refd to. [para. 244, footnote 152].

R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 2001 SCC 78, refd to. [para. 244, footnote 153].

R. v. Younger (D.M.) (2004), 187 Man.R.(2d) 121; 330 W.A.C. 121; 2004 MBCA 113, refd to. [para. 244, footnote 154].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161, refd to. [para. 252, footnote 155].

Roncato et al. v. Caverly (1991), 53 O.A.C. 367 (C.A.), refd to. [para. 253, footnote 156].

Johnston v. Murchison (1995), 127 Nfld. & P.E.I.R. 1; 396 A.P.R. 1 (P.E.I.C.A.), refd to. [para. 263, footnote 158].

R. v. Buzzanga and Durocher (1979), 25 O.R.(2d) 705; 49 C.C.C.(2d) 369; 101 D.L.R.(3d) 488; 1979 CarswellOnt 1502 (C.A.), refd to. [para. 267, footnote 162].

R. v. Harding (M.) (2001), 152 O.A.C. 230 (C.A.), refd to. [para. 267, footnote 163].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1; 18 C.C.C.(3d) 223 (S.C.C.), refd to. [para. 267, footnote 164].

Transco plc v. Stockport Metropolitan Borough Council, [2004] 2 A.C. 1; 2003 UKHL 61 (H.L.), refd to. [para. 268, footnote 165].

Rylands v. Fletcher (1868), L.R. 3 H.L. 330; (1865), 3 H & C 774; (1866), L.R. 1 Ex 265 (H.L.), refd to. [para. 268, footnote 166].

Brown et al. v. University of Alberta et al. (1997), 197 A.R. 237 (Q.B.), refd to. [para. 269, footnote 167].

Watson v. Grant (1970), 72 W.W.R.(N.S.) 665; 1970 CarswellBC 104 (S.C.), refd to. [para. 275, footnote 168].

Scarff v. Wilson (1986), 10 B.C.L.R.(2d) 273 (S.C.), affd. [1989] 3 W.W.R. 259; 33 B.C.L.R.(2d) 290; 47 C.C.L.T. 109; 55 D.L.R.(4th) 247; 1988 CarswellBC 449 (C.A.), affd. [1989] 2 S.C.R. 776; 100 N.R. 189, refd to. [para. 284, footnote 171].

Hetu v. Traff et al. (1999), 247 A.R. 278; 1999 ABQB 1050, refd to. [para. 300, footnote 172].

Elofson v. Davis et al. (1997), 195 A.R. 321 (Q.B.), refd to. [para. 303, footnote 174].

Long v. Thiessen and Laliberte (1968), 65 W.W.R.(N.S.) 577 (B.C.C.A.), refd to. [para. 306, footnote 175].

Andrews et al. v. Grand and Toy (Alberta) Ltd. et al., [1978] S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 324, footnote 177].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81, refd to. [para. 324, footnote 178].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103, refd to. [para. 337, footnote 180].

M.B. v. British Columbia, [2003] 2 S.C.R. 477; 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161; 2003 SCC 53, refd to. [para. 338, footnote 181].

Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283; 2002 SCC 9, refd to. [para. 338, footnote 182].

Bradburn v. Great Western Railway Co., [1874-1880] All E.R. Rep. 195 (Exch. Ct.), refd to. [para. 340, footnote 183].

Parry v. Cleaver, [1969] 1 All E.R. 555; [1970] A.C. 1 (H.L.), refd to. [para. 340, footnote 184].

Canadian Pacific Ltd. et al. v. Gill et al., [1973] S.C.R. 654; 37 D.L.R.(3d) 229; [1973] 4 W.W.R. 593; 1973 CarswellBC 112, refd to. [para. 340, footnote 185].

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1, refd to. [para. 341, footnote 187].

Cunningham v. Wheeler - see Cooper v. Miller (No. 1).

Wipfli v. Britten, [1984] 5 W.W.R. 385; 56 B.C.L.R. 273; 13 D.L.R.(4th) 169 (C.A.), refd to. [para. 358, footnote 188].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 359, footnote 189].

Epstein et al. v. Epstein et al. (1997), 35 O.T.C. 81 (Gen. Div.), revd. (1999), 124 O.A.C. 233 (C.A.), refd to. [para. 360, footnote 190].

Marshall v. Ontario (Minister of Highways), [1966] O.J. No. 351 (H.C.), refd to. [para. 362, footnote 191].

Kask v. Tam et al., [1994] B.C.W.L.D. 1010 (S.C.), revd. (1996), 72 B.C.A.C. 133; 119 W.A.C. 133 (C.A.), refd to. [para. 364, footnote 192].

Dube v. Penlon Ltd. et al. (1994), 21 C.C.L.T.(2d) 268; 1994 CarswellOnt 932 (Gen. Div.), refd to. [para. 372, footnote 193].

Bauer v. Seager et al. (2000), 147 Man.R.(2d) 1; 2000 MBQB 113, refd to. [para. 375, footnote 195].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 382, footnote 197].

Augustus v. Gosset, [1996] 3 S.C.R. 268; 202 N.R. 241, refd to. [para. 383, footnote 198].

Robinson v. Canadian Pacific Railway Co., [1892] A.C. 481 (P.C.), refd to. [para. 383, footnote 199].

Ferraiuolo Estate v. Olson (2004), 357 A.R. 68; 334 W.A.C. 68; 2004 ABCA 281, refd to. [para. 385, footnote 200].

Edmonds v. Armstrong Funeral Home Ltd., [1930] 3 W.W.R. 649; [1931] 1 D.L.R. 676; 1930 CarswellAlta 53; 25 Alta. L.R. 173 (C.A.), refd to. [para. 387, footnote 201].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321, refd to. [para. 387, footnote 202].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 387, footnote 203].

Coggs v. Bernard (1703), 2 Ld. Raym. 909; 92 E.R. 107 (Eng.), refd to. [para. 387, footnote 204].

Webb et al. v. Motta et al. (1998), 233 A.R. 9 (Q.B.), refd to. [para. 388, footnote 205].

Anderson-Redick v. Graham et al. (2000), 258 A.R. 42 (Q.B.), refd to. [para. 388, footnote 206].

Aubry v. Editions Vice-Versa Inc. et al., [1998] 1 S.C.R. 591; 224 N.R. 321, refd to. [para. 389, footnote 207].

Anderson et al. v. Wilson et al. (1999), 122 O.A.C. 69 (C.A.), leave to appeal denied (2000), 258 N.R. 194; 138 O.A.C. 200 (S.C.C.), refd to. [para. 389, footnote 208].

Prinzo v. Baycrest Centre for Geriatric Care (2002), 161 O.A.C. 302 (C.A.), refd to. [para. 389, footnote 209].

R. v. Rabey, [1980] 2 S.C.R. 513; 32 N.R. 451, affing. (1977), 40 C.R.N.S. 46; 17 O.R.(2d) 1; 1 L. Med. Q. 280; 37 C.C.C.(2d) 461; 79 D.L.R.(3d) 414; 1977 CarswellOnt 24 (C.A.), refd to. [para. 392, footnote 211].

Lusignan v. Concordia Hospital et al. (1997), 117 Man.R.(2d) 241 (Q.B.), refd to. [para. 411, footnote 212].

Dushynski v. Rumsey (2003), 327 A.R. 373; 296 W.A.C. 373; 2003 ABCA 164, refd to. [para. 416, footnote 213].

T.W.N.A. et al. v. Clarke et al. (2003), 190 B.C.A.C. 250; 311 W.A.C. 250; 2003 BCCA 670, refd to. [para. 417, footnote 214].

Campbell Estate v. Calgary Power Ltd. et al. (1986), 70 A.R. 161 (Q.B.), revd. (1989), 89 A.R. 293 (C.A.), refd to. [para. 462, footnote 216].

Brimacombe v. Mathews et al. (2001), 150 B.C.A.C. 71; 245 W.A.C. 71; 2001 BCCA 206, leave to appeal denied (2001), 286 N.R. 397; 170 B.C.A.C. 32; 279 W.A.C. 32 (S.C.C.), refd to. [para. 475, footnote 218].

Bystedt v. Hay et al., [2001] B.C.T.C. 1735; 2001 BCSC 1735, affd. (2004), 194 B.C.A.C. 240; 317 W.A.C. 240; 2004 BCCA 124, refd to. [para. 476, footnote 219].

Crawford v. Penney et al., [2003] O.T.C. 16 (Sup. Ct.), affd. [2004] O.A.C. Uned. 433 (C.A.), refd to. [para. 479, footnote 220].

McGlone et al. v. Kelly et al., [2002] B.C.T.C. 774; 2002 BCSC 774, refd to. [para. 482, footnote 221].

Ter Neuzen v. Korn - see Neuzen v. Korn.

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 488, footnote 222].

Chow et al. v. Wellesley Hospital et al., [1999] O.J. No. 279 (Gen. Div.), refd to. [para. 489, footnote 224].

Granger et al. v. Ottawa General Hospital et al. (1996), 7 O.T.C. 81 (Gen. Div.), refd to. [para. 489, footnote 225].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 555, footnote 226].

Gordon v. Harmon (1999), 246 A.R. 305 (Q.B.), refd to. [para. 556, footnote 227].

Martin v. Listowel Memorial Hospital et al. (1998), 84 O.T.C. 277 (Gen. Div.), revd. (2000), 138 O.A.C. 77 (C.A.), refd to. [para. 578, footnote 229].

Wenden et al. v. Trikha et al. (1991), 116 A.R. 81 (Q.B.), with other reasons at (1992), 124 A.R. 1 (Q.B.), affd. (1993), 135 A.R. 382; 33 W.A.C. 382 (C.A.), refd to. [para. 584, footnote 230].

MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District (1998), 226 A.R. 1 (Q.B.), varied (2001), 293 A.R. 41; 257 W.A.C. 41; 2001 ABCA 257, additional reasons at (2002), 320 A.R. 194; 288 W.A.C. 194; 2002 ABCA 307, refd to. [para. 590, footnote 231].

Authors and Works Noticed:

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (1st Ed. 1981), p. 546 [para. 266, footnote 161].

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), p. 344 [para. 468, footnote 217].

de Smith, S.A., Judicial Review of Administrative Action (4th Ed. 1980), p. 156 [para. 108, footnote 64].

Fridman, Gerald Henry Louis, The Law of Torts in Canada (2nd Ed. 2002), pp. 275, 276 [para. 231, footnote 149]; 420 [para. 146, footnote 86].

Klar, Lewis N., Tort Law (2nd Ed. 1996), pp. 335 [para. 264, footnote 159]; 341 [para. 265, footnote 160].

Klar, Lewis N., Tort Law (3rd Ed. 2003), pp. 387, 388 [para. 202, footnote 131].

Linden, Allen M., Canadian Tort Law (7th Ed. 2001), pp. 323 [para. 215, footnote 137]; 348 [para. 418, footnote 215]; 368, 377, 378, 379 [para. 236, footnote 150].

Odgers, Blake W., High Court Pleading and Practice (23rd Ed. 1991), p. 160 [para. 86, footnote 51].

Pépin, G., and Ouellette, Y., Principes de contentieux administratif (2nd Ed. 1982), pp. 148, 149 [para. 108, footnote 64].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), pp. 166, 228, 229 [paras. 60, 231, footnotes 40, 146]; 281 [para. 67, footnote 44]; 323 [para. 215, footnote 138].

Pincus, S., Progress on the Causal Chain Gang: Some Approaches to Causation in Tort Law and Steps Toward a Linguistic Analysis (1986), 24 Osgoode Hall L.J. 961, generally [para. 202, footnote 132].

Waddams, Stephen M., The Law of Damages (2003 Looseleaf Ed.), p. 3-68 ff. [para. 389, footnote 210]; para. 14.440 [para. 201, footnote 130].

Counsel:

Harold W. Veale, Q.C., Gary B. Romanchuk, Rod J. Wasylyshyn, Christopher M. Veale (Ogilvie LLP), for the plaintiffs;

Richard B. Low, Q.C., James J. Heelan, Simon D. Johnson, Laurie Goldbach (Bennett Jones LLP), for the defendants.

This case was heard on April 18 and 19, 2004, before Watson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on October 21, 2004.