Steinkrauss et al. v. Afridi, 2013 ABQB 179

• Judge: Gates, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 15, 2013
• Citations: 2013 ABQB 179;(2013), 559 A.R. 143 (QB)

Steinkrauss v. Afridi (2013), 559 A.R. 143 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.035

Jeff Steinkrauss and Her Majesty the Queen in Right of Alberta (plaintiffs/respondents) v. Obaid Tahir Khan Afridi (defendant/appellant)

(1003 05957; 2013 ABQB 179)

Indexed As: Steinkrauss et al. v. Afridi

Alberta Court of Queen's Bench

Judicial District of Edmonton

Gates, J.

March 20, 2013.

Summary:

A husband sued a doctor, alleging that his failure to properly treat his wife resulted in her breast cancer diagnosis being delayed and her subsequent death. A Master allowed the husband's application to amend the statement of claim. The amendment added an allegation that the doctor fraudulently altered his charts after the wife was diagnosed, and that this act merited punitive damages and solicitor-client costs. The doctor appealed the Master's decision.

The Alberta Court of Queen's Bench allowed the appeal in part and struck that portion of the amendment that claimed punitive damages.

Damages - Topic 1324

Exemplary or punitive damages - Bar - Fatal Accidents Act claims - [See Practice - Topic 2143 ].

Damages - Topic 2104

Torts causing death - General - Damages recoverable - [See Practice - Topic 2143 ].

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - [See Practice - Topic 2143 ].

Practice - Topic 2115.1

Pleadings - Amendment of pleadings - To add claim for punitive damages - [See Practice - Topic 2143 ].

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - A husband sued a doctor, alleging that his failure to properly treat his wife resulted in her breast cancer diagnosis being delayed and her subsequent death - A Master allowed the husband's application to amend the statement of claim - The amendment added an allegation that the doctor fraudulently altered his charts after the wife was diagnosed, and that this act merited punitive damages and solicitor-client costs - The doctor appealed the Master's decision - The Alberta Court of Queen's Bench allowed the appeal in part - The history of the Fatal Accidents Act (FAA) suggested that the legislature's intent was to limit the types of non-pecuniary damages available to claimants - Damages under the FAA had to be "appropriate to an injury resulting from the death" (s. 3(1)), not injury resulting from the act that caused the death - Damages under the FAA were distinct from the damages that the wife would have been entitled to had she survived - The latter had to be claimed by the estate under the Survival of Actions Act, which provided that punitive damages were not recoverable - Based on the amended pleadings, it was not arguable that damages resulting from changes to the chart were "appropriate to an injury resulting from the death" - Nor did the amended pleadings support an independent cause of action regarding the alleged change to the chart that accrued to the husband's benefit - However, the allegations did not have to be struck - The alleged facts, which had the support of expert evidence, were clearly relevant to the doctor's credibility - The status and integrity of the chart might be important in determining whether the doctor met the standard of care, and could be supportive of a claim for solicitor-client costs - The court struck only that portion of the amendment that claimed punitive damages.

Torts - Topic 7684

Fatal accidents - Practice - Pleading - [See Practice - Topic 2143 ].

Cases Noticed:

Bahcheli v. Yorkton Securities Inc. et al. (2012), 524 A.R. 382; 545 W.A.C. 382; 2012 ABCA 166, refd to. [para. 10].

Clapperton Estate v. Davey et al. (2009), 468 A.R. 81; 2009 ABQB 63, refd to. [para. 15].

Balm v. 3512061 Canada Ltd. et al. (2003), 327 A.R. 149; 296 W.A.C. 149; 2003 ABCA 98, refd to. [para. 18].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 21].

Plester v. Wawanesa Mutual Insurance Co. (2006), 213 O.A.C. 241; 39 C.C.L.I.(4th) 44 (C.A.), refd to. [para. 22].

Blacquiere's Estate v. Canadian Motor Sales Corporation Limited and Clark (1975), 10 Nfld. & P.E.I.R. 178; 17 A.P.R. 178 (P.E.I.S.C.), refd to. [para. 24].

Dow Chemical Canada Inc. et al. v. Nova Chemicals Corp. (2010), 495 A.R. 338; 2010 ABQB 524, refd to. [para. 25].

Mikisew Cree First Nation v. Canada et al. (2002), 303 A.R. 43; 273 W.A.C. 43; 2002 ABCA 110, refd to. [para. 26].

Baker v. Bolton (1808), 1 Comp. 493; 170 E.R. 1033 (K.B.), refd to. [para. 29].

Blake v. Midland Ry (1852), 18 Q.B. 93, refd to. [para. 29].

St. Lawrence & Ottawa Ry v. Lett (1885), 11 S.C.R. 422, refd to. [para. 29].

Grant Truck Ry v. Jennings (1888), 13 App. Cas. 800 (P.C.), refd to. [para. 29].

Sakaluk Estate v. Lepage et al., [1981] 2 W.W.R. 597; 6 Sask.R. 249, refd to. [para. 29].

Vana v. Tosta et al., [1968] S.C.R. 71; 66 D.L.R.(2d) 97, refd to. [para. 30].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 30].

MacLean et al. v. MacDonald (2002), 201 N.S.R.(2d) 237; 629 A.P.R. 237; 2002 NSCA 30, refd to. [para. 33].

Lord et al. v. Downer et al. (1999), 125 O.A.C. 168; 179 D.L.R.(4th) 430 (C.A.), refd to. [para. 35].

Rowe et al. v. Brown (2008), 261 N.S.R.(2d) 332; 835 A.P.R. 332; 2008 NSSC 13, refd to. [para. 42].

Statutes Noticed:

Fatal Accidents Act, R.S.A. 2000, c. F-8, sect. 3(1) [para. 40].

Authors and Works Noticed:

Alberta, Law Reform Institute, Report for Discussion No. 12: Non-pecuniary Damages in Wrongful Death Actions - A Review of Section 8 of the Fatal Accidents Act (June 1992), generally [para. 32].

Cooper-Stephenson, K.D., Personal Injury Damages in Canada (2nd Ed. 1996), p. 640 [para. 40].

Counsel:

Joseph V. Miller, Q.C. (Weir Bowen LLP), for the plaintiffs/respondents;

William B. Hembroff (Bennett Jones LLP), for the defendant/appellant.

This appeal was heard on January 15, 2013, before Gates, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on March 20, 2013.