Rekken Estate v. Health Region No. 1 et al., 2015 SKCA 36

• Judge: Richards, C.J.S., Herauf and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 12, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 36;(2015), 457 Sask.R. 167 (CA)

Rekken Estate v. Health Region No. 1 (2015), 457 Sask.R. 167 (CA);

    632 W.A.C. 167

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AP.041

Kelvin Mark Rekken and Susan Louise Rekken, Administrators Of the Estate of Bowan Karl Rekken, Kelvin Mark Rekken and Susan Louise Rekken, in their individual capacities (appellants/plaintiffs) v. Health Region #1, Dr. J.F. Malan and Dr. P.J. Greyling (respondents/defendants)

(CACV2617; 2015 SKCA 36)

Indexed As: Rekken Estate v. Health Region No. 1 et al.

Saskatchewan Court of Appeal

Richards, C.J.S., Herauf and Ryan-Froslie, JJ.A.

April 17, 2015.

Summary:

The plaintiffs applied for an order pursuant to rule 212(2)(c) and rule 215 of the Queen's Bench Rules that two defendants further and better particularize documents in their Amended Supplementary Statement as to Documents.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2012), 390 Sask.R. 95, dismissed the application. A similar application respecting a third defendant (Health Region #1 (HR) needed to be dealt with. HR also applied for an order requiring the production of several documents by the plaintiffs. The plaintiffs applied for an order under rule 236 that the RCMP produce their entire file respecting the death of the plaintiffs' son.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2012), 400 Sask.R. 119, dismissed the applications. The plaintiffs appealed the dismissal of their application seeking the production of the RCMP file. The defendants applied to strike the notice of appeal on the basis that the appeal was an interlocutory decision and required leave pursuant to s. 8(1) of the Court of Appeal Act.

The Saskatchewan Court of Appeal, in a decision reported at (2012), 399 Sask.R. 241; 552 W.A.C. 241, allowed the application and struck the notice of appeal. The plaintiffs applied to amend their statement of claim to add claims regarding losses derived from the loss of the son's contribution to the family trust and other family-held businesses and farming ventures (loss of contribution) and for aggravated and punitive damages.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 453 Sask.R. 1, allowed the application only as to the amendments regarding loss of contribution. The plaintiffs applied for leave to appeal.

The Saskatchewan Court of Appeal, per Herauf, J.A., in a decision reported at [2014] Sask.R. Uned. 65, allowed the application.

The Saskatchewan Court of Appeal allowed the appeal with respect to the claim for punitive damages only. An amendment to the statement of claim regarding punitive damages was allowed.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction and jurisdiction to stay an action) - [See Damages - Topic 905 ].

Damages - Topic 905

Aggravation - General - Aggravated damages - Claim for (incl. pleadings) - Under the Fatal Accidents Act, the plaintiffs sued the defendants regarding the plaintiffs' son's death in 2003 - The plaintiffs' application under rule 3-72 to amend their statement of claim to add a claim for aggravated damages was dismissed - The plaintiffs appealed - The Saskatchewan Court of Appeal dismissed the appeal - It was well established that aggravated damages, which compensated for non-pecuniary intangible injuries such as distress and humiliation, were not available under fatal accidents legislation and were not claimable under s. 4(1) of the Act - Recent amendments to the Act (applicable to deaths that occurred after August 1, 2004) that expressly provided for aggravated damages in prescribed amounts reinforced this conclusion - If aggravated damages were barred prior to the enactment of s. 4.1, then that provision's enactment did not "lift the bar to them under s. 4" - The court rejected the plaintiffs' request to apply its inherent jurisdiction to fashion a remedy here - The court's inherent jurisdiction was ousted by the legislative provisions - See paragraphs 16 to 25.

Damages - Topic 1324

Exemplary or punitive damages - Bar - Fatal Accidents Act claims - Under the Fatal Accidents Act, the plaintiffs sued the defendants regarding the plaintiffs' son's death in 2003 - The plaintiffs' application under rule 3-72 to amend their statement of claim to add claims for punitive damages was dismissed - The plaintiffs appealed - The Saskatchewan Court of Appeal allowed the appeal - As a non-pecuniary and non-compensatory award, it appeared that punitive damages should not be available in any action grounded, as here, under s. 4(1) of the Act - However, there was academic support for the position that punitive damages should not be disallowed as a matter of interpretation of fatal accidents legislation - Further, there were conflicting decisions from other appellate courts - The specific allegation that the defendants had altered evidence was very relevant - Punitive damages might be available where the conduct (altering medical records post-death) related to the litigation rather than to the death, itself - It was not plain and obvious that the claim for punitive damages would fail - An amendment to the statement of claim regarding punitive damages was allowed - See paragraphs 26 to 41.

Damages - Topic 2104

Torts causing death - General - Damages recoverable - [See Damages - Topic 905 and Damages - Topic 1324 ].

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - [See Damages - Topic 905 and Damages - Topic 1324 ].

Practice - Topic 2115.1

Pleadings - Amendment of pleadings - To add claim for punitive damages - [See Damages - Topic 1324 ].

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - [See Damages - Topic 905 ].

Practice - Topic 8825.7

Appeals - General principles - Duty of appeal court re decision to amend or strike pleadings - Under the Fatal Accidents Act, the plaintiffs sued the defendants regarding the plaintiffs' son's death in 2003 - The plaintiffs' application under rule 3-72 to amend their statement of claim to add claims for aggravated and punitive damages was dismissed - The plaintiffs appealed - The Saskatchewan Court of Appeal discussed the court's jurisdiction and the standard of review - The parties agreed that the standard of review was correctness - See paragraphs 8 to 12.

Torts - Topic 7684

Fatal accidents - Practice - Pleading - [See Damages - Topic 905 and Damages - Topic 1324 ].

Cases Noticed:

Steinkrauss et al. v. Afridi (2013), 566 A.R. 128; 597 W.A.C. 128; 2013 ABCA 417, refd to. [para. 6].

Rowe et al. v. Brown (2008), 261 N.S.R.(2d) 332; 835 A.P.R. 332; 2008 NSSC 13, refd to. [para. 6].

Alves et al. v. MyTravel Canada Holidays Inc. et al. (2011), 377 Sask.R. 68; 528 W.A.C. 68; 342 D.L.R.(4th) 395; 2011 SKCA 116, refd to. [para. 9].

Roussy v. Red Seal Vacations Inc. - see Alves et al. v. MyTravel Canada Holidays Inc. et al.

Mann et al. v. Hawkins et al. (2011), 385 Sask.R. 59; 536 W.A.C. 59; 2011 SKCA 146, refd to. [para. 12].

St. Pierre v. Bigstone et al., [2011] 5 W.W.R. 594; 371 Sask.R. 35; 518 W.A.C. 35; 2011 SKCA 34, refd to. [para. 12].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 16].

St. Lawrence & Ottawa Railway Co. v. Lett (1885), 11 S.C.R. 422, refd to. [para. 18].

Canadian Pacific Railway Co. v. Robinson (1887), 14 S.C.R. 105, refd to. [para. 18].

Vana v. Tosta, [1968] S.C.R. 71, refd to. [para. 20].

Keizer v. Hanna and Buch, [1978] 2 S.C.R. 342; 19 N.R. 209, refd to. [para. 21].

Zipchen v. Bainbridge et al., [2008] 12 W.W.R. 397; 311 Sask.R. 90; 428 W.A.C. 90; 2008 SKCA 87, refd to. [para. 25].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 26].

MacLean et al. v. MacDonald (2002), 201 N.S.R.(2d) 237; 629 A.P.R. 237; 211 D.L.R.(4th) 474 (C.A.), refd to. [para. 28].

Anderson v. Board of Education of Maple Creek School Division No. 17 (1986), 50 Sask.R. 4 (Q.B.), refd to. [para. 29].

Lord et al. v. Downer et al. (1999), 125 O.A.C. 168; 179 D.L.R.(4th) 430 (C.A.), refd to. [para. 31].

Sickel v. Gordy et al. (2008), 311 Sask.R. 235; 428 W.A.C. 235; 298 D.L.R.(4th) 151; 2008 SKCA 100, refd to. [para. 34].

Nichols v. Guiel (1983), 145 D.L.R.(3d) 186 (B.C.S.C.), refd to. [para. 34].

Gerula v. Flores (1995), 83 O.A.C. 128; 126 D.L.R.(4th) 506 (C.A.), refd to. [para. 39].

Endean v. Canadian Red Cross Society et al. (1998), 106 B.C.A.C. 73; 172 W.A.C. 73; 157 D.L.R.(4th) 465 (C.A.), refd to. [para. 40].

Statutes Noticed:

Fatal Accidents Act, R.S.S. 1978, c. F-11, sect. 4(1) [para. 14].

Authors and Works Noticed:

Cooper-Stevenson, Ken, Personal Injury Damages in Canada (2nd Ed. 1996), pp. 97 [para. 26]; 637 [paras. 17, 23]; 640 [para. 30].

Waddams, S.M., The Law of Damages (2014) (Looseleaf, release 23), p. 11-1 [para. 16].

Counsel:

Mervin C. Phillips and Leane Phillips, for the appellants;

David E. Thera, Q.C., and Amy D. Banford, for the respondent doctors;

Reginald A. Watson, Q.C., and Graham Purse, for the Health Region.

This appeal was heard on February 12, 2015, by Richards, C.J.S., Herauf and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. On April 17, 2015, Herauf, J.A., delivered the following reasons for judgment for the court.