Skagos v. Emery Jamieson et al., (1986) 72 A.R. 231 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 01, 1986
• Citations: (1986), 72 A.R. 231 (QBM)

Skagos v. Emery Jamieson (1986), 72 A.R. 231 (QBM)

MLB headnote and full text

Skagos v. Emery Jamieson, Sharek, Public Trustee (Alta.), Grauman (Gravman) and Reikie

(Q.B. No. 8503 32027)

Indexed As: Skagos v. Emery Jamieson et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

August 1, 1986.

Summary:

Skagos was an infant when injured in a 1977 automobile accident. The action against the defendant driver was settled with the approval of the Public Trustee and the Court of Queen's Bench under the Infants Act. Skagos now claimed that the settlement was not in her best interests and brought an action for $500,000.00 general damages against her lawyer and his firm, the Public Trustee, the defendant driver and the doctor who supplied the reports as to her injuries and prognosis. Skagos also sought to have the settlement set aside. The law firm and Public Trustee applied under Rule 129 (1) to strike out the statement of claim against them as disclosing no cause of action. The doctor applied under Rule 221 for a declaration that the action against him was barred by the Limitation of Actions Act.

A Master of the Alberta Court of Queen's Bench struck the statement of claim against the lawyer, law firm and Public Trustee on the ground that the action was an impermissible collateral attack on the court order approving the settlement. The Master allowed the doctor's application to the extent of ordering a pretrial adjudication of whether the Limitation of Actions Act applied to bar the action.

Practice - Topic 5261

Trials - Trial of preliminary issues - Issues of law - An infant's 1977 negligence action for damages for injuries suffered in a motor vehicle accident was settled with the court's approval - Years later, the infant brought a negligence action against the doctor whose reports of her injuries and prognosis were relied on in reaching the settlement - The doctor applied under Rule 221 for a declaration that the action was precluded by the Limitation of Actions Act - A Master of the Alberta Court of Queen's Bench ordered that the preliminary issue as to whether the action was statute barred be subject to pretrial adjudication, where the facts were not in serious dispute and the pretrial adjudication could conclude the action - See paragraphs 49 to 71.

Practice - Topic 6258

Judgments and orders - Setting aside orders - In a collateral action - An infant's 1977 negligence action for damages for injuries suffered in a motor vehicle accident was settled with the court's required approval under the Infants Act - The infant now brought an action for damages against her lawyer, his law firm, the Public Trustee and others, claiming the settlement was not in her best interests - A Master of the Alberta Court of Queen's Bench struck the statement of claim, because the new action was an impermissible collateral attack on the court order approving the settlement.

Cases Noticed:

Foy v. Foy, 12 C.P.C. 188 (Ont. C.A.), refd to. [para. 6].

Glynn v. Unwin, [1926] O.W.N. 188, dist. [para. 23].

Poulin v. Nadon, [1950] 2 D.L.R. 303, dist. [para. 23].

Birchall, Re (1880), 16 Ch.D. 41, dist. [para. 23].

Rhodes v. Swithenbank (1889), 22 Q.B.D. 577, dist. [para. 23].

Vano v. Canadian Coloured Cotton Mills Co. (1910), 21 O.L.R. 144, dist. [para. 23].

Asher v. Secretary of State, [1974] 2 All. E.R. 156, refd to. [para. 34].

Oak v. Frobisher (1959), 27 W.W.R.(N.S.) 593, refd to. [para. 34].

Kozlakowsky v. Kozlakowsky (1955), 14 W.W.R.(N.S.) 517, refd to. [para. 34].

Ringrose v. Stevenson (1982), 35 A.R. 62, refd to. [para. 34].

R. v. Wilson (1984), 51 N.R. 321; 9 C.C.C.(3d) 97 (S.C.C.), appld. [para. 35].

R. v. Cass (1986), 71 A.R. 248 (C.A.), refd to. [para. 36].

Chomik v. Chomik (1986), 70 A.R. 304 (C.A.), refd to. [para. 38].

McDonald v. Fellows, 105 D.L.R.(3d) 434, refd to. [para. 51].

Creditel of Canada v. Terrace Corporation (Construction) (1984), 50 A.R. 311, refd to. [para. 51].

Town of Spruce Grove v. Yellowhead Regional Library Board (1983), 44 A.R. 408, refd to. [para. 58].

Canadian Cancer Society v. Bank of Montreal (1966), 57 W.W.R.(N.S.) 182, refd to. [para. 61].

Central Canada Potash Co. v. A-G of Saskatchewan, [1974] 6 W.W.R. 374, refd to. [para. 62].

Karlsen Shipping Company v. Sefel and Associates (1977), 4 A.R. 242; 7 Alta. L.R.(2d) 13, refd to. [para. 62].

Hedley Byrne & Co. v. Heller & Partners, [1964] A.C. 465, refd to. [para. 69].

Statutes Noticed:

Infants Act, R.S.A. 1970, c. 185, sect. 16(1), sect. 16(3), sect. 16(4) [para. 9].

Rules of Court (Alta.), rule 129(1), rule 221.

Counsel:

M. Skagos (Bassie Kantor), for the plaintiff;

J. Brumlik, Q.C. (Newson Brumlik), for the defendants, Emery Jamieson and W. Paul Sharek;

V.L. Lirette (Reynolds Mirth), for the defendant, the Public Trustee of Alberta;

Martin Romanow (Bennett Jones), for the defendant, Dr. R.D. Reikie.

These applications were heard before Funduk, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on August 1, 1986.