Scharnagl v. Stimpson et al., (2005) 269 Sask.R. 259 (CA)

• Judge: Bayda, C.J.S., Lane and Richards, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 24, 2005
• Jurisdiction: Saskatchewan
• Citations: (2005), 269 Sask.R. 259 (CA);2005 SKCA 121

Scharnagl v. Stimpson (2005), 269 Sask.R. 259 (CA);

    357 W.A.C. 259

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. NO.021

Stefan Andrew Scharnagl, a minor suing by his litigation guardian and mother, Debora Scharnagl (appellant/plaintiff) v. Barb Tomilin, Jan Klapatiuk, Suzanne Cyr-Phillipchuk and Pat Kryklywicz (respondents/proposed defendants) and Debora Scharnagl and Christoph Scharnagl (nonparty/plaintiffs) and Dr. Neil Stimpson, Dr. M.W. Davies, Dr. C.A. Spies and Assiniboine Valley District Health Board (nonparties/defendants)

(1039; 2005 SKCA 121)

Indexed As: Scharnagl v. Stimpson et al.

Saskatchewan Court of Appeal

Bayda, C.J.S., Lane and Richards, JJ.A.

October 24, 2005.

Summary:

The infant plaintiff suffered brain injuries following his 1995 birth. In 1996, a medical negligence action was commenced against the doctors involved in the delivery, the obstetrician charged with the mother's care and the hospital. In June 2004, the four nurses involved in the delivery and post natal care were examined for discovery as nonparties (rule 222A). In August 2004, the plaintiff applied under rule 38(1) to add the four nurses as defendants, submitting that their addition was necessary to permit effective and complete adjudication of the claim.

The Saskatchewan Court of Queen's Bench, in a brief Chambers endorsement, dismissed the application. Adding the nurses as parties was unnecessary and inappropriate. The plaintiff appealed.

The Saskatchewan Court of Appeal dismissed the appeal. The trial judge did not err in exercising his discretion to decline to add the nurses as defendants.

Practice - Topic 665

Parties - Adding or substituting parties - Adding or substituting defendants - Considerations - The infant plaintiff suffered brain injuries following his 1995 birth - In 1996, a medical negligence action was commenced against the doctors involved in the delivery, the obstetrician charged with the mother's care and the hospital - In June 2004, the four nurses involved in the delivery and post natal care were examined for discovery as nonparties (rule 222A) - In August 2004, the plaintiff applied under rule 38(1) to add the four nurses as defendants, submitting that their addition was necessary to permit effective and complete adjudication of the claim - A Queen's Bench judge dismissed the application - Adding the nurses as parties was unnecessary and inappropriate where they were examined for discovery and the hospital conceded that it would be vicariously liable for the negligence of any of its employees (including nurses) - The Saskatchewan Court of Appeal dismissed the plaintiff's appeal - The judge did not err in exercising his discretion to add the nurses as defendants - The plaintiff failed to discharge the onus of showing that the nurses were necessary parties - It would be inappropriate to add the nurses as parties merely to permit their discovery transcript to be read in at trial - There was a difference between a necessary party and a necessary witness.

Cases Noticed:

Collin Hotels Ltd. v. Surtees Estate (1984), 34 Sask.R. 148 (Q.B.), refd to. [para. 13].

Rimmer v. Adshead, [2002] 4 W.W.R. 119; 217 Sask.R. 94; 265 W.A.C. 94 (C.A.), refd to. [para. 14].

Lindsay v. Lindsay, Toews and Toews (1981), 15 Sask.R. 29 (Q.B.), refd to. [para. 18].

Pioneer Trust Co. (Liquidation) v. Lebrosix Holdings Ltd. et al. (1989), 78 Sask.R. 62 (Q.B.), refd to. [para. 18].

Regina Realty Sales Ltd. v. Glassman et al. (1996), 149 Sask.R. 146 (Q.B.), refd to. [para. 18].

Amon v. Tuck (Raphael) & Sons Ltd., [1956] 1 All E.R. 273 (Q.B.), refd to. [para. 19].

Fullwood and Fullwood v. Master Excavators Ltd., Peters and Peters (H.A.) Trucking Ltd. (1981), 34 A.R. 541; 25 C.P.C. 81 (Q.B. Master), refd to. [para. 19].

Letvad v. Finley et al. (2000), 146 B.C.A.C. 49; 239 W.A.C. 49; 49 C.P.C.(4th) 1 (C.A.), refd to. [para. 19].

Amoco Canada Petroleum Co. et al. v. Alberta and Southern Gas Co. et al. (1993), 140 A.R. 244; 10 Alta. L.R.(3d) 325 (Q.B.), refd to. [para. 19].

CPCS Ltd. v. Western Industrial Clay Products Ltd. (1995), 31 Alta. L.R.(3d) 257 (C.A.), refd to. [para. 19].

Save The Eaton's Building Coalition v. Winnipeg (City) et al., [2002] 3 W.W.R. 419; 160 Man.R.(2d) 236; 262 W.A.C. 236 (C.A.), refd to. [para. 19].

Ridder v. Frey (1963), 42 W.W.R.(N.S.) 627 (Sask. C.A.), refd to. [para. 25].

Counsel:

E. Scott Hopley, for the appellant;

R.A. Watson, Q.C., for the respondent.

This appeal was heard on June 23, 2005, before Bayda, C.J.S., Lane and Richards, JJ.A., of the Saskatchewan Court of Appeal.

On October 24, 2005, Richards, J.A., delivered the following judgment for the Court of Appeal.