Rozak Estate v. Demas et al., 2011 ABQB 239

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 23, 2011
• Citations: 2011 ABQB 239;(2011), 509 A.R. 337 (QB)

Rozak Estate v. Demas (2011), 509 A.R. 337 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. AP.038

Brad Brogden, Administrator Ad Litem of the Estate of Brooklyn Alyssa Rozak (plaintiff) v. Michael Demas, Carl Blashko, Darren Neilson, John Doe, Capital Health, operating a hospital known as the University of Alberta Hospital, Caritas Health Group, operating a hospital known as the Grey Nuns Hospital and the Governors of the University of Alberta (defendants)

(0503 17780; 2011 ABQB 239)

Indexed As: Rozak Estate v. Demas et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

April 7, 2011.

Summary:

The plaintiff's wife committed suicide in 2005, following psychiatric consultation at the defendant University of Alberta Hospital. A statement of claim was issued. In 2008, the plaintiff applied to add three doctors as defendants. The doctors objected on the basis of the Limitations Act. The plaintiff was cross-examined on his affidavit in support of his application to amend. A number of undertakings were requested but refused. The doctors applied to compel answers. The application turned on relevance, solicitor-client privilege and solicitor's work product privilege.

A Master of the Alberta Court of Queen's Bench ordered that the plaintiff provide answers to two of the seven objected-to undertakings. The doctors appealed. The plaintiff cross-appealed.

The Alberta Court of Queen's Bench, on the correctness standard of review, directed that all but one of the requested undertakings be answered, but limited the scope of the inquiries.

Barristers and Solicitors - Topic 1541.1

Relationship with client - Duty to client - General - When limitation period missed - [See Practice - Topic 605 ].

Barristers and Solicitors - Topic 1623

Relationship with client - Duty of confidentiality - Disclosure to court - [See fifth Practice - Topic 3709 ].

Barristers and Solicitors - Topic 1625

Relationship with client - Duty of confidentiality (or professional secrecy) - Waiver by client - [See fifth Practice - Topic 3709 ].

Barristers and Solicitors - Topic 1641

Relationship with client - Confidential communications - General - [See fifth Practice - Topic 3709 ].

Evidence - Topic 4238.1

Witnesses - Privilege - Lawyer-client communications - Documents - Lawyer's work product - [See fifth Practice - Topic 3709 ].

Evidence - Topic 4256

Witnesses - Privilege - Lawyer-client communications - Waiver - Putting communication in issue - [See fifth Practice - Topic 3709 ].

Evidence - Topic 4703

Witnesses - Examination - Cross-examination - Range of examination - [See second Practice - Topic 3709 ].

Evidence - Topic 4714

Witnesses - Examination - Cross-examination - Of affiants - [See second Practice - Topic 3709 ].

Practice - Topic 605

Parties - Adding or substituting parties - General principles - Application of limitation periods - This appeal dealt with objected-to undertakings - In the underlying application, the plaintiff sought to add three doctors as defendants - The doctors objected on the basis of the Limitations Act - Section 6(4)(b) applied, dealing with adding defendants to an existing lawsuit after the two year period had run - The doctors acknowledged that the onus was on them to demonstrate that their identities were discoverable by the plaintiff before the dates identified - There were different arguments with respect to each of the doctors - The Alberta Court of Queen's Bench, after framing the issues for each of the doctors, stated that "It is reasonable to assume that [the plaintiff] left the identification of possible defendants to his counsel after August, 2005 [the time the plaintiff sought legal advice and signed consents for the release of medical records], so issues as to his diligence or reasonableness in trying to identify the correct defendants are really issues as to the diligence or reasonableness of his counsel. Thus the application and the evidence is destined to bump up against solicitor-client privilege and solicitor's work product privilege" - See paragraphs 54 to 80.

Practice - Topic 3708.1

Evidence - Undertakings respecting - Affidavits - [See all Practice - Topic 3709 ].

Practice - Topic 3709

Evidence - Undertakings respecting - Information compelled by court order - The plaintiff was cross-examined on his affidavit in support of his application to add defendants - A number of undertakings were requested but refused - An issue was whether the undertakings might be directed on questioning on an affidavit - The Alberta Court of Queen's Bench noted the "new" rule (rule 6.7) that dealt with questioning, and the "old" rule (rule 314(2)) that was in effect when the questioning took place - "Having regard to the foundational rules, I see no purpose or basis to change the scope of questioning on an affidavit in support of an application: questions relevant and material to the underlying application will be permitted and if refused, will be ordered to be answered ... Repetitive and abusive questions have never been allowed; questioning must now be both relevant and material to the application having regard to the narrowing of the scope of questioning generally from 'touching the matters in question' to 'relevant and material'. Nevertheless, to determine relevance and materiality, the issues on the underlying application must be reviewed" - See paragraphs 27 to 32.

Practice - Topic 3709

Evidence - Undertakings respecting - Information compelled by court order -The plaintiff was cross-examined on his affidavit in support of his application to add defendants - A number of undertakings were requested but refused - The threshold issue was whether (or the extent to which) an affiant might be required to undertake to provide further evidence or documents - The Alberta Court of Queen's Bench stated that "[t]he statement that an affiant cannot be required to inform him or herself is not the law in Alberta. An affiant being questioned is in a similar position to that of a witness being cross-examined at trial. ... One key difference is that witnesses at trial do not usually have the ability to inform themselves during cross-examination on questions they are unable to readily answer. ... Because questioning on affidavits generally takes place some time before the underlying application is heard, an affiant does have the opportunity to shore up his or her testimony by providing a further affidavit. Where the affiant has knowledge or access to knowledge which may be helpful to the other side, there is no policy reason to have a bar against requiring the affiant to obtain the answer for a question that was properly put to the affiant on questioning" - See paragraphs 33 to 40.

Practice - Topic 3709

Evidence - Undertakings respecting - Information compelled by court order -The plaintiff was cross-examined on his affidavit in support of his application to add defendants - A number of undertakings were requested but refused - The threshold issue was whether (or the extent to which) an affiant might be required to undertake to provide further evidence or documents - The Alberta Court of Queen's Bench concluded that there was no general prohibition against asking affiants for undertaking on questioning on their affidavits, but that "the court should be slow to direct that an affiant be directed to inform him or herself after the questioning and provide further answers, and that generally witnesses being questioned on an affidavit are treated differently (i.e. with greater restraint as to undertakings) than witnesses being questioned under Part 5 of the New Rules of Court" - See paragraph 41.

Practice - Topic 3709

Evidence - Undertakings respecting - Information compelled by court order - The plaintiff's wife committed suicide in 2005, following psychiatric consultation at the defendant University of Alberta Hospital - A statement of claim was issued - In 2008, the plaintiff applied to add three doctors as defendants - The doctors objected on the basis of the Limitations Act - The plaintiff was cross-examined on his affidavit in support of his application to amend - A number of undertakings were requested but refused - The doctors applied to compel answers - The Alberta Court of Queen's Bench held that, subject to privilege and relevance issues, it was appropriate to require the plaintiff to inform himself as to steps taken on his behalf to identify the individuals who might have been involved in his wife's treatment at the defendant hospital - The information sought related to an important issue in the application (the commencement date for the limitation period) - Requesting the information from counsel was not onerous and would likely be significant in determining the application - See paragraphs 45 to 47.

Practice - Topic 3709

Evidence - Undertakings respecting - Information compelled by court order - The plaintiff (Brogden) applied to add three doctors as defendants - The doctors objected and raised the Limitations Act - The plaintiff was cross-examined on his affidavit - A number of undertakings were requested but refused - The doctors applied to compel answers -Solicitor-client and solicitor's work product privilege were raised - The Alberta Court of Queen's Bench stated that "Where the issue of diligence has been legitimately raised (as it has here because of the Plaintiff's application to add the doctors as defendants after the standard without-discoverability period of two years from the injury), the Plaintiff's diligence as well as his solicitor's diligence becomes relevant. As the only way the doctors have of testing such diligence is through cross-examination on Mr. Brogden's affidavit and seeking undertakings with respect to his counsel's actions (unless the doctors wanted to risk examining the Plaintiff's counsel under Rule 6.8 as their witness rather than through cross-examination), solicitor client privilege may well have to yield on issues relating to knowledge of doctors, and the diligence of the solicitors in informing that knowledge. It would be unfair to allow the plaintiff to essentially say 'I didn't do anything, I left it all to my lawyers' and then refuse to say what the lawyers have told him they did, or even ask them about it. That is not to say that the resulting waiver or loss of privilege extends to anything beyond diligence in discovering the identity of the doctors involved. Mr. Brogden's affidavits do not go beyond diligence issues, and anything beyond that would be irrelevant to the underlying application let alone being an unwarranted incursion into privilege" - See paragraphs 101 and 102.

Practice - Topic 3709

Evidence - Undertakings respecting - Information compelled by court order - The plaintiff applied to add three doctors as defendants - The doctors objected and raised the Limitations Act - The plaintiff was cross-examined on his affidavit - In an undertaking request, the doctors sought information as to what steps the plaintiff's solicitors took to determine whether any other doctor should be named as defendants in the lawsuit - The plaintiff refused to answer, raising solicitor-client and solicitor's work product privilege - The Alberta Court of Queen's Bench held that it was not improper to ask what steps the solicitors took from the time they were retained until the relevant dates - The plaintiff had brought diligence into issue by applying to add the doctors as defendants - Discoverability was necessary to extend the limitation period for suing each of the doctors to or beyond the relevant dates - See paragraph 103.

Practice - Topic 3709

Evidence - Undertakings respecting - Information compelled by court order - The plaintiff applied to amend the amended statement of claim to add three doctors as defendants - The doctors objected and raised the Limitations Act - The plaintiff was cross-examined on his affidavit - In an undertaking request, the doctors sought information as to what medical directories were available in the plaintiff's counsel's office between August 2005 (the time the plaintiff sought legal advice and signed consents for the release of medical records) and June 1, 2008 (when the amended statement of claim was issued) - The plaintiff objected - The Alberta Court of Queen's Bench ordered that the requested undertaking be answered, limited to the period ending February 16, 2006 (a year after receipt by the plaintiff's counsel of the defendant hospital's chart in which the doctors' names were found) - Diligence was in issue - It was relevant to know what resources the plaintiff or his counsel actually had readily available - As to privilege, if any materials were obtained for the purpose of the litigation, privilege had been waived by the plaintiff putting his due diligence in issue - See paragraphs 110 to 115.

Practice - Topic 3709

Evidence - Undertakings respecting - Information compelled by court order - The plaintiff's wife committed suicide on June 5, 2005, following psychiatric consultation - On June 1, 2007, the plaintiff sued, among others, the defendant University Hospital - On November 14, 2008, the plaintiff applied to add three doctors as defendants, including Dr. Din, whom the plaintiff had met when Dr. Din interviewed his wife on June 3, 2005 - The plaintiff deposed in his affidavit that he did not then know the identity of the East Indian or Middle Eastern resident (Dr. Din) who treated his wife - The plaintiff was cross-examined on his affidavit - In an undertaking request, the doctors wanted to know when the plaintiff told his counsel that the wife had been treated by a male resident of East Indian or Middle Eastern descent, and why Dr. Din's involvement and identity were not recognized by plaintiff's counsel following receipt of the defendant university hospital records in November of 2005 - The request was objected to on the basis of the answer being a protected solicitor-client communication - The Alberta Court of Queen's Bench held that the privilege had been waived by due diligence being brought into issue by the plaintiff - Any privilege relating to the records had also been waived because diligence was in issue - See paragraphs 115 to 118.

Cases Noticed:

Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. et al., [1981] 4 W.W.R. 760 (Alta. Q.B.), refd to. [para. 30].

155569 Canada Ltd. v. 248524 Alberta Ltd. et al. (1989), 99 A.R. 100 (Q.B. Master), refd to. [para. 30].

Bland v. National Capital Commission et al. (1989), 29 F.T.R. 232; 1989 CarswellNat 170 (T.D.), refd to. [para. 30].

Dow Chemical Canada Inc. v. Shell Chemicals Canada Ltd. et al. (2008), 459 A.R. 68; 97 Alta. L.R.(4th) 182; 2008 ABQB 671 (Master), refd to. [paras. 30, 37].

Merck Frosst Canada Inc. et al. v. Canada (Minister of National Health and Welfare) et al. (1997), 146 F.T.R. 249; 1997 CarswellNat 2661 (T.D.), refd to. [para. 34].

Alberta (Treasury Branches) v. Leahy et al. (1999), 234 A.R. 201; 1999 CarswellAlta 1027; 1999 ABQB 185, refd to. [para. 35].

Bruno v. Canada (Attorney General) et al., [2003] F.T.R. Uned. 751; 2003 CarswellNat 3375; 2003 FC 1281, refd to. [para. 35].

Resortport Development Corp. et al. v. Alberta Racing Corp. et al., 2004 CarswellAlta 1880 (Q.B.), affd. [2005] A.R. Uned. 9; 2005 ABCA 49, refd to. [para. 54].

De Shazo v. Nations Energy Co. et al. (2005), 367 A.R. 267; 346 W.A.C. 267; 2005 ABCA 241, refd to. [para. 55].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 CarswellNat 2704; 2006 SCC 39, refd to. [para. 97].

R. v. Card (B.A.) et al. (2002), 307 A.R. 277; 2002 ABQB 537, refd to. [para. 97].

Hudson Bay Mining and Smelting Co. v. Cummings, P.C.J. (2006), 208 Man.R.(2d) 75; 383 W.A.C. 75; 2006 MBCA 98, refd to. [para. 97].

Moseley v. Spray Lakes Sawmills (1980) Ltd. et al. (1996), 184 A.R. 101; 22 W.A.C. 101; 39 Alta. L.R.(3d) 141 (C.A.), refd to. [para. 97].

Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co., 1992 CanLII 6132 (Q.B.), refd to. [para. 98].

True Blue Cattle Co. et al. v. Toronto-Dominion Bank et al. (2004), 360 A.R. 117; 2004 ABQB 145, refd to. [para. 98].

Petro Can Oil & Gas Corp. et al. v. Resource Service Group Ltd. (1988), 90 A.R. 220 (Q.B.), affd. (1988), 32 C.P.C.(2d) xlvi (Alta. C.A.), refd to. [para. 98].

Alberta Wheat Pool v. Estrin and Dawson Resources Ltd. (1986), 75 A.R. 348; 14 C.P.C.(2d) 242 (Q.B.), affd. (1987), 17 C.P.C.(2d) xxxiv (Alta. C.A.), refd to. [para. 98].

Marion v. Wawanesa Mutual Insurance Co. et al., [2005] A.R. Uned. 333; 2004 ABCA 213, refd to. [para. 98].

Pritchard v. Human Rights Commission (Ont.) et al., [2004] 1 S.C.R. 809; 319 N.R. 322; 187 O.A.C. 1; 2004 SCC 31, refd to. [para. 100].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 100].

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 100].

R. v. Fosty and Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112, refd to. [para. 100].

Statutes Noticed:

Limitations Act, R.S.A. 2000, c. L-12, sect. 3(1)(a) [para. 50]; sect. 6(1) [para. 51]; sect. 6(4)(b) [para. 52]; sect. 6(5)(b) [para. 53].

Rules of Court (Alta.), 2010, rule 6.7 [para. 28].

Rules of Court (Alta.), rule 314(2) [para. 29].

Counsel:

Philip Kirman (Weir Bowen LLP), for the plaintiff;

David Hawreluk and Alison Archer (Bennett Jones LLP), for the applicants, Kevin Neilson, Lara Ostolosky and Omar Din.

This application was heard on February 23, 2011, before Graesser, J.A., of the Alberta Court of Queen's Bench, who delivered the following judgment, with reasons, at Edmonton, Alberta, on April 7, 2011.