Schnick v. Rosen, 2009 ABQB 189

• Judge: Manderscheid, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: Friday March 06, 2009
• Citations: 2009 ABQB 189;(2009), 470 A.R. 359 (QB)

Schnick v. Rosen (2009), 470 A.R. 359 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AP.019

Avery Schnick by her next friend and Grandmother, Gwendolyn Wirsz and Her Majesty the Queen in Right of Alberta (plaintiffs) v. Natalie Rosen (defendant)

(0503 16045; 0803 08058; 2009 ABQB 189)

Indexed As: Schnick v. Rosen

Alberta Court of Queen's Bench

Judicial District of Edmonton

Manderscheid, J.

March 27, 2009.

Summary:

The plaintiff suffered severe and life threatening injuries while in the custody of the defendant, who was an operator of a day home. The plaintiff sued, alleging that the defendant "violently shook, assaulted, or neglected the plaintiff, causing her grave bodily injury". The statement of claim also alleged that the plaintiff suffered a traumatic brain injury and permanent disability. The plaintiff applied for leave to amend the amended statement of claim and sought an order directing the federal Department of Justice to release the RCMP file that was in its possession with respect to these matters.

The Alberta Court of Queen's Bench granted leave to amend the amended statement of claim but dismissed the application for production of the file in the RCMP's possession.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - The plaintiff suffered severe and life threatening injuries while in the custody of the defendant, who was an operator of a day home - The plaintiff sued, alleging that the defendant "violently shook, assaulted, or neglected the plaintiff, causing her grave bodily injury" - The statement of claim also alleged that the plaintiff suffered a traumatic brain injury and permanent disability - The plaintiff applied for leave to amend the amended statement of claim - The proposed amendments would abandon the allegation in paragraph 7 of the amended statement of claim that the defendant "violently shook, assaulted or neglected the plaintiff" and replace it with the allegation that the defendant "failed to properly supervise the plaintiff." - The plaintiff sought leave to amend the amended statement of claim to state that the injuries suffered by the plaintiff were caused solely and entirely by negligence on the part of the defendant and sought to add six particulars of that negligence - The defendant's insurer objected to the amendment, asserting that the amended statement of claim contained no allegations of negligence on the part of the defendant, plead no facts that would support a finding of negligence against the defendant and that the proposed amendments were not trivial amendments - The Alberta Court of Queen's Bench allowed the application - There was evidence supporting the allegations of negligence - See paragraphs 22 to 33.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - The plaintiff suffered severe and life threatening injuries while in the custody of the defendant, who was an operator of a day home - The plaintiff sued, alleging that the defendant "violently shook, assaulted, or neglected the plaintiff, causing her grave bodily injury" - The statement of claim also alleged that the plaintiff suffered a traumatic brain injury and permanent disability - The plaintiff applied for leave to amend the amended statement of claim - The proposed amendments would abandon the allegation in paragraph 7 of the amended statement of claim that the defendant "violently shook, assaulted or neglected the plaintiff" and replace it with the allegation that the defendant "failed to properly supervise the plaintiff." - The plaintiff sought leave to amend the amended statement of claim to state that the injuries suffered by the plaintiff were caused solely and entirely by negligence on the part of the defendant and sought to add six particulars of that negligence - The defendant's insurer objected to the amendment, asserting that the proposed amendments contradicted the existing evidence and were made in bad faith - The Alberta Court of Queen's Bench allowed the application - The evidence provided by the plaintiff did not contradict the proposed amendments and accordingly, the plaintiff was not acting in bad faith - See paragraph 35.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - The plaintiff suffered severe and life threatening injuries while in the custody of the defendant, who was an operator of a day home - The plaintiff sued, alleging that the defendant "violently shook, assaulted, or neglected the plaintiff, causing her grave bodily injury" - The statement of claim also alleged that the plaintiff suffered a traumatic brain injury and permanent disability - The plaintiff applied for leave to amend the amended statement of claim - The proposed amendments would abandon the allegation in paragraph 7 of the amended statement of claim that the defendant "violently shook, assaulted or neglected the plaintiff" and replace it with the allegation that the defendant "failed to properly supervise the plaintiff." - The plaintiff sought leave to amend the amended statement of claim to state that the injuries suffered by the plaintiff were caused solely and entirely by negligence on the part of the defendant and sought to add six particulars of that negligence - The defendant's insurer objected to the amendment, asserting that the amendments were barred by virtue of the Limitations Act, given that the limitation period began to run at the time of the filing of the first statement of claim - The Alberta Court of Queen's Bench allowed the application - As the plaintiff was a minor, s. 5.1(2) of the Limitations Act provided that the limitation period was suspended, unless the potential defendant delivered a notice to the plaintiff that the limitation period for the defendant was now running - Further, even if the insurer could successfully argue that the proposed amendments constituted a new cause of action, the limitation period would still be suspended with respect to the new cause of action - The purpose of s. 5.1(2) could not be that a single claim by the plaintiff during the suspended limitation period precluded the plaintiff from making another distinct claim - Accordingly, amending the existing pleadings to include a new cause of action within the limitation period should be allowed and encouraged by the courts, as it resulted in the avoidance of multiplicity of proceedings - See paragraphs 36 and 37.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - The plaintiff suffered severe and life threatening injuries while in the custody of the defendant, who was an operator of a day home - The plaintiff sued, alleging that the defendant "violently shook, assaulted, or neglected the plaintiff, causing her grave bodily injury" - The statement of claim also alleged that the plaintiff suffered a traumatic brain injury and permanent disability - The plaintiff applied for leave to amend the amended statement of claim - The proposed amendments would abandon the allegation in paragraph 7 of the amended statement of claim that the defendant "violently shook, assaulted or neglected the plaintiff" and replace it with the allegation that the defendant "failed to properly supervise the plaintiff." - The plaintiff sought leave to amend the amended statement of claim to state that the injuries suffered by the plaintiff were caused solely and entirely by negligence on the part of the defendant and sought to add six particulars of that negligence - The defendant's insurer objected to the amendment, asserting that the amendments were barred by the operation of the equitable doctrine of acquiescence and laches, which was preserved by virtue of s. 10 of the Limitations Act - The Alberta Court of Queen's Bench allowed the application - Even if the insurer could successfully argue that the proposed amendments constituted a new cause of action, such amendments were not barred by operation of the equitable doctrine of acquiescence and laches - Laches was a defence in equity to an equitable claim - The plaintiff's claim was not an equitable claim, rather, it was a legal claim - While acquiescence might operate to bar legal claims, the acquiescing party had to act in full knowledge of its legal rights - Moreover, the party raising acquiescence had to show that it had suffered substantial prejudice as a result of its reliance on the acquiescence - In the case at bar, the plaintiff did not know that she had a claim in negligence until the Preliminary Inquiry in the criminal proceedings - Moreover, the insurer had been unable to persuade the court that it had suffered substantial prejudice as a result of the actions of the plaintiff - See paragraphs 38 and 39.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred - [See third and fourth Practice - Topic 2110].

Practice - Topic 4618

Discovery - Production of documents by nonparties - Police investigative files - The plaintiff suffered severe and life threatening injuries while in the custody of the defendant, who was an operator of a day home - The plaintiff sued, alleging that the defendant "violently shook, assaulted, or neglected the plaintiff, causing her grave bodily injury" - The statement of claim also alleged that the plaintiff suffered a traumatic brain injury and permanent disability - The plaintiff applied for an order directing the federal Department of Justice to release the RCMP file that was in its possession with respect to these matters - The Alberta Court of Queen's Bench dismissed the application - Pursuant to section 17 of the Interpretation Act, the federal Crown and members of the R.C.M.P., who were the federal Crown's agents, could not be compelled to produce records in a civil action if the Crown or its agents were not a party to the civil action - See paragraphs 41 to 46.

Cases Noticed:

Canada Deposit Insurance Corp. v. Canadian Commercial Bank (2000), 269 A.R. 49; 82 Alta. L.R.(3d) 382 (Q.B.), refd to. [para. 13].

Balm v. 3512061 Canada Ltd. et al. (2003), 327 A.R. 149; 296 W.A.C. 149; 2003 ABCA 98, refd to. [para. 13].

Marlborough Ford Sales Ltd. v. Ford Motor Co. of Canada Ltd. (2003), 13 Alta. L.R.(4th) 336; 2003 ABQB 298, refd to. [para. 13].

Rago Millwork & Supplies Co. Ltd. v. Woodhouse (D.) Construction Ltd. (1981), 28 A.R. 499 (Q.B. Master), refd to. [para. 13].

Ilic v. Toronto Sun Publishing Corp. et al. (1998), 224 A.R. 116; 1998 ABQB 419, refd to. [para. 13].

CT Comm Edmonton Ltd. v. Shaw Communications Inc. et al. (2007), 423 A.R. 338; 2007 ABQB 473, refd to. [para. 13].

C.H.S. et al. v. Director of Child Welfare (Alta.) (2006), 403 A.R. 103; 2006 ABQB 528, refd to. [para. 14].

Mikisew Cree First Nation v. Canada et al. (2002), 303 A.R. 43; 273 W.A.C. 43; 2002 ABCA 110; 2002 ABCA 150, refd to. [para. 22].

Sharpe, Re, [1892] 1 Ch. 154 (C.A.), refd to. [para. 39].

Demers (Maurice) Transport Ltd. v. Fountain Tire Distributors (Edmonton) Ltd., [1974] 1 W.W.R. 348; 42 D.L.R.(3d) 412 (Alta. C.A.), refd to. [para. 39].

Canada (Attorney General) v. Tee Tee Investments Ltd., [1994] A.J. No. 358 (C.A.), refd to. [para. 43].

Bourgeois Estate et al. v. Bolen, [2004] 8 W.W.R. 297; 351 A.R. 244; 2004 ABQB 35, refd to. [para. 45].

Counsel:

Ronald J. Jewitt (Cummings Andrews Mackay LLP), for the plaintiff;

Melanie S. Watson (Cleall), for the defendant, Rosen;

William B. Hembroff and Ryan L. Martin (Bryan & Company LLP), for the defendant, Primmum Insurance Co.

This application was heard on March 6, 2009, by Manderscheid, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on March 27, 2009.