Tardif Estate et al. v. Wong et al., (2000) 268 A.R. 113 (QB)

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 28, 2000
• Citations: (2000), 268 A.R. 113 (QB);2000 ABQB 474

Tardif Estate v. Wong (2000), 268 A.R. 113 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. JL.110

Sharon Tardif, Sharon Tardif as Executrix of the Estate of Roger Joseph Tardif, Breanne Nicole Tardif and Trevor Clayton Tardif by their next friend Sharon Tardif (plaintiffs) v. Andrew Wong, David Fleck, Brian Chew, John Doe No. 1, doing business as Callingwood Medical Centre, John Doe No. 2, John Doe No. 3, John Doe No. 8, John Doe No. 9, John Doe No. 10 (defendants)

(Action No. 9803-08225; 2000 ABQB 474)

Indexed As: Tardif Estate et al. v. Wong et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

July 10, 2000.

Summary:

The deceased last visited Drs. Chew, Wong and Fleck on January 16, April 7, and April 11, 1997 respectively. He died on June 29, 1997. The deceased's estate and family commenced a malpractice action against the doctors on May 14, 1998, pleading the Fatal Accidents Act and the Survival of Actions Act.

The Alberta Court of Queen's Bench, in a decision not reported in this series of reports, opined that the one year period in s. 55 of the Limitation of Actions Act (respecting medical negligence) governed the action, not the two year periods set out in ss. 53 and 54 (respecting actions under the Survival of Actions Act and the Fatal Accidents Act). The parties were subsequently asked to submit further argument with respect to whether either the Fatal Accidents Act or the Survival of Actions Act created a new cause of action.

The Alberta Court of Queen's Bench held that the plaintiffs' claim under the Survival of Actions Act was out of time, but that their action under the Fatal Accidents Act was not. The one year period for medical negligence in the Limitation of Actions Act did not apply to the latter claim because the Fatal Accidents Act created a new cause of action, distinct from any cause of action that the deceased might have had.

Limitation of Actions - Topic 3046

Actions in tort - Fatal accidents - General -The deceased last visited Drs. Chew, Wong and Fleck on January 16, April 7, and April 11, 1997, respectively - He died on June 29, 1997 - The deceased's estate and family commenced a malpractice action against the doctors on May 14, 1998, pleading the Fatal Accidents Act and the Survival of Actions Act - The Alberta Court of Queen's Bench held that the plaintiffs' claim under the Survival of Actions Act was out of time, but that their action under the Fatal Accidents Act was not - The one year period for medical negligence in the Limitation of Actions Act did not apply to the latter claim because the Fatal Accidents Act cre­ated a new cause of action, dis­tinct from any cause of action that the deceased might have had.

Limitation of Actions - Topic 8602

Claims by or against an estate - Claim by an estate - Applicable limitation period - [See Limitation of Actions - Topic 3046 ].

Medicine - Topic 4324

Liability of practitioners - Bars to actions -Limitation periods - [See Limitation of Actions - Topic 3046 ].

Cases Noticed:

Mason v. Peters et al. (1982), 39 O.R.(2d) 27 (C.A.), refd to. [para. 9].

British Columbia Electric Railway Co. v. Gentile (1914), 18 D.L.R. 264 (P.C.), folld. [para. 12].

British Columbia Electric Railway Co. v. Turner (1914), 49 S.C.R. 470, leave to appeal refused (1914), 49 S.C.R. vi (P.C.), refd to. [para. 12].

Pym v. Great Northern Railway Co. (1861), 4 B. & S. 396, refd to. [para. 15].

Seward v. Ship Vera Cruz (1884), 10 App. Cas. 59, refd to. [para. 15].

Kushner v. Wellesley Hospital (1971), 19 D.L.R.(3d) 56 (Ont. C.A.), refd to. [para. 16].

Von Cramm v. Riverside Hospital, Andres and Wills (1986), 17 O.A.C. 218; 32 D.L.R.(4th) 314 (C.A.), refd to. [para. 17].

Drummond et al. v. Fortune et al. (1993), 16 O.R.(3d) 105 (Gen. Div.), refd to. [para. 19].

Clark Estate et al. v. Lee (1997), 214 A.R. 109; 26 C.P.C.(4th) 304 (Q.B.), dist. [para. 21].

Campbell Estate v. Fang (1994), 155 A.R. 270; 73 W.A.C. 270; 21 Alta. L.R.(3d) 1 (C.A.), dist. [para. 24].

Duhamel et al. v. Matic et al. (2000), 262 A.R. 109 (Q.B. Master), refd to. [para. 27].

Scott v. Thompson (1957), 7 D.L.R.(2d) 655 (Alta. C.A.), appld. [para. 32].

Duncan v. Baddeley et al. (1997), 196 A.R. 161; 141 W.A.C. 161 (C.A.), refd to. [para. 33].

Dressel v. Glaser, [1954] 1 D.L.R. 655 (Ont. C.A.), refd to. [para. 37].

Statutes Noticed:

Fatal Accidents Act, R.S.A. 1980, c. F-5, sect. 2 [para. 7].

Limitation of Actions Act, R.S.A. 1980, c. L-15, sect. 53, sect. 54, sect. 55(a) [para. 4].

Survival of Actions Act, R.S.A. 1980, c. S-30, sect. 2 [para. 31].

Authors and Works Noticed:

Mew, Graeme, The Law of Limitations (1991), pp. 209, 210, 211 [para. 35].

Williams, Jeremy S., Limitation of Actions in Canada (2nd Ed. 1980), p. 181 [para. 35].

Counsel:

Rose M. Carter and Tara S. Mah (Bennett Jones), for the defendants;

William B. Russell (Bishop & McKenzie), for the plaintiffs.

This matter was heard on May 16 and June 28, 2000, by Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on July 10, 2000.