Smith v. Kneier et al., 2001 ABQB 291

• Judge: McMahon, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 27, 2001
• Citations: 2001 ABQB 291;(2001), 288 A.R. 144 (QB)

Smith v. Kneier (2001), 288 A.R. 144 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. AP.123

Andrew Smith, an infant by his next friend, Stanley A. Smith, and the said Stanley A. Smith (plaintiffs/respondents) v. Dr. Gary Kneier defendant/applicant), Shelly Ann Smith, Sheila Thomson, and Her Majesty the Queen in Right of Alberta (defendants)

(Action No. 9901 01884; 2001 ABQB 291)

Andrew Smith, an infant by his next friend, Stanley A. Smith, and the said Stanley A. Smith (plaintiffs/respondents) v. Dr. William McElheran (defendant/applicant)

(Action No. 9801 16017)

Indexed As: Smith v. Kneier et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

McMahon, J.

April 5, 2001.

Summary:

Parents disputed custody of their child. A psychologist performed a bilateral custody assessment based in part on a report of another psychologist who had performed assessments of both parents. The parties consented to a judicial dispute resolution process, the custody issues were resolved, and the father stated that he lost custody of the child. He sued the psychologists and others, in his own name and in his son's name. As against the two psychologists, he alleged misrepresentations, professional negligence and breach of contract. The psychologists applied for summary judgment.

A Master of the Alberta Court of Queen's Bench, in a decision not reported in this series of reports, dismissed the applications. The psychologists appealed.

The Alberta Court of Queen's Bench allowed the appeals. The witness immunity rule applied to both psychologists.

Practice - Topic 218

Persons who can sue and be sued - Individuals and corporations - Status or standing - Witness immunity (incl. experts) - Parents disputed custody of their child - A psychologist performed a bilateral custody assessment based in part on a report of another psychologist who had performed assessments of both parents - The parties consented to a judicial dispute resolution process, the custody issues were later resolved, and the father stated that he lost custody of the child - He sued the psychologists and others, in his own name and in his son's name - As against the two psychologists, he alleged misrepresentations, professional negligence and breach of contract - The psychologists applied for summary judgment - A Master dismissed the applications - The psychologists appealed - The Alberta Court of Queen's Bench allowed the appeals - The witness immunity rule applied to both psychologists.

Cases Noticed:

Watson v. McEwan, [1905] A.C. 480, refd to. [para. 8].

Marrinan v. Vibart, [1962] 1 All E.R. 869, refd to. [para. 9].

Marrinan v. Vibart, [1963] 1 Q.B. 528 (C.A.), refd to. [para. 10].

Evans v. London Hospital Medical College et al, [1981] 1 All E.R. 715 (Q.B.), refd to. [para. 11].

Halls v. Mitchell, [1928] S.C.R. 125, refd to. [para. 12].

Stanton et al. v. Callaghan et al., [1998] 4 All E.R. 961 (C.A.), refd to. [para. 13].

Carnahan v. Coates (1990), 47 B.C.L.R. 127 (S.C.), refd to. [para. 13].

Bruce v. Byrne-Stevens and Assoc. Engineers Inc. (1989), 776 P.2d 666 (Wash. S.C.), refd to. [para. 14].

N.M. et al. v. I.A.S.M. et al. (1992), 14 B.C.A.C. 269; 26 W.A.C. 269; 69 B.C.L.R.(2d) 100 (B.C.C.A), refd. to. [para. 14].

Fabian v. Margulies (1985), 53 O.R.(2d) 380 (C.A.), refd to. [para. 15].

Romaniuk v. Alberta, [1988] 4 W.W.R. 107; 86 A.R. 81 (Q.B.), dist. [para. 16].

Counsel:

Christian S. Ouellette, for the plaintiffs/respondents;

James S. Peacock, for the defendants/applicants.

These appeals were heard on March 27, 2001, by McMahon, J., of the Alberta Court of Queen's bench, Judicial District of Calgary, who delivered the following decision on March 5, 2001.