V.A.H. v. Lynch et al., 2008 ABQB 448

• Judge: Clark, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 21, 2008
• Citations: 2008 ABQB 448;(2008), 449 A.R. 1 (QB)

V.A.H. v. Lynch (2008), 449 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JL.117

V.A.(L.)H. (plaintiff) v. Roland F. Lynch, Robert J. Herget, Sharon Stewart (aka Sharon Moore), Calgary Regional Health Authority, Metro-Calgary and Rural General Hospital District No. 93 (aka Calgary District Hospital Group), Holy Cross Hospital and Jane Hoffman (aka Janet Singh)

(defendants)

(9401 04870; 2008 ABQB 448)

Indexed As: V.A.H. v. Lynch et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Clark, J.

July 21, 2008.

Summary:

The plaintiff was hospitalized at the psychiatric unit of the Holy Cross Hospital from April 28 to June 1, 1977, as a result of emotional difficulties following child birth. Almost 17 years later, in 1994, she commenced an action against the doctors, the hospital and hospital staff (the defendants), alleging negligence, false imprisonment, and assault and battery. She claimed, inter alia, that she developed Cushing's disease (a pituitary problem) from medications given to her during her hospital stay. The defendants applied for summary judgment dismissing the actions against them, arguing that the actions were barred by the Limitation of Actions Act.

A Master of the Alberta Court of Queen's Bench dismissed the applications. The defendants appealed.

The Alberta Court of Queen's Bench, in a decision reported 224 A.R. 359, allowed the appeal, holding that the plaintiff's actions against the doctors, hospital and hospital staff were statute barred. The court granted summary judgment dismissing the plaintiff's claims. The plaintiff appealed.

The Alberta Court of Appeal, in a decision reported 255 A.R. 359; 220 W.A.C. 359, allowed the appeal in part. The court allowed the claims of false imprisonment, assault and battery to proceed to trial, including the limitation of actions issues relevant to those claims.

The Alberta Court of Queen's Bench, in the decision reported below, held that the claims against the doctors were barred by the one year limitation period in s. 55(a) of the Limitations of Actions Act (LAA) and the claims against the nurses were barred by the two year limitation period in s. 51 of the LAA. In any event, the court opined that there was no evidence that the plaintiff was falsely imprisoned or that she was the subject of an assault and battery during her hospitalization. Further, the plaintiff failed to establish, on a balance of probabilities, that the administration of medications in 1977 likely caused her to develop Cushing's disease (i.e., she failed to establish damages).

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - The plaintiff was hospitalized at the psychiatric unit of the Holy Cross Hospital from April 28 to June 1, 1977, as a result of emotional difficulties following child birth - Almost 17 years later, on April 5, 1994, she commenced an action against two doctors, the hospital and hospital staff (the defendants), alleging false imprisonment, and assault and battery - The defendant doctors argued that the plaintiff's claim against them was barred by s. 55(a) of the Limitations of Actions Act (LAA) (i.e., an action against a physician for negligence or malpractice had to be commenced within one year after the termination of services) - The Alberta Court of Queen's Bench held that s. 55 applied to the plaintiff's claims for false imprisonment and assault and battery - The court noted that the services were terminated within the meaning of s. 55 on June 1, 1977, as the plaintiff had no further contact with either doctor - The doctrine of discoverability did not apply to s. 55(a) - There was no unconscionable conduct (fraudulent concealment) which would justify an exception to the limitation period, and even if there was, the plaintiff did not act with due diligence in uncovering the fraud - The plaintiff's claim was barred by the LAA - See paragraphs 138 to 176.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - The plaintiff was hospitalized at the psychiatric unit of the Holy Cross Hospital from April 28 to June 1, 1977, as a result of emotional difficulties following child birth - Almost 17 years later, on April 5, 1994, she commenced an action against two doctors, the hospital and hospital staff (the defendants), alleging false imprisonment, and assault and battery - The defendant nurses argued that the plaintiff's claim against them was barred by s. 51 of the Limitations of Actions Act (LAA), which provided that an action for assault, battery, trespass to the person and false imprisonment had to be commenced within two years after the cause of action arose - The plaintiff argued that she did not discover her cause of action until she obtained a copy of her 1977 hospital records in May 1993 - The Alberta Court of Queen's Bench held that s. 51 applied to the nurses in this case and the doctrine of discoverability applied to s. 51 - However, the knowledge, capacity and circumstances relating to the plaintiff were such that she ought to have been more diligent in requesting her 1977 hospital records - She was aware of the essential facts upon which she based her claim more than two years prior to commencing her action - The plaintiff's claim was barred by the LAA - See paragraphs 176 to 209.

Limitation of Actions - Topic 3211

Actions in tort - Trespass to the person - False imprisonment - [See both Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 3212

Actions in tort - Trespass to the person - Assault and battery - [See both Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 3268

Actions in tort - For professional services - Termination of services - [See first Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See both Limitation of Actions - Topic 15 ].

Medicine - Topic 4324

Liability of practitioners - Bars to actions - Limitation periods - [See first Limitation of Actions - Topic 15 ].

Cases Noticed:

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 8].

Gemoto et al. v. Calgary Regional Health Authority, [2006] A.R. Uned. 644; 67 Alta. L.R.(4th) 226; 2006 ABQB 740, refd to. [para. 8].

Kelly v. Lundgard et al. (2001), 286 A.R. 1; 253 W.A.C. 1; 2001 ABCA 185, refd to. [para. 141].

Vincent v. Hall (1985), 49 O.R.(2d) 701 (H.C.), refd to. [para. 142].

Hadley v. Allore, Mathieson and Belleville General Hospital (1987), 25 O.A.C. 158; 63 O.R.(2d) 208 (C.A.), refd to. [para. 142].

Johnson v. Hebert et al., [2003] A.R. Uned. 644; 2003 ABQB 859, refd to. [para. 143].

Czyz et al. v. Langenhahn et al. (1998), 219 A.R. 9; 179 W.A.C. 9; 1998 ABCA 112, refd to. [para. 146].

Bach Estate v. Young et al. (1999), 242 A.R. 316 (Q.B.), refd to. [para. 147].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 151].

McInerney v. MacDonald, [1992] 2 S.C.R. 138; 137 N.R. 35; 126 N.B.R.(2d) 271; 317 A.P.R. 271, refd to. [para. 169].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 177].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 177].

Hill v. Registrar of South Alberta Land Registration District (1993), 135 A.R. 266; 33 W.A.C. 266 (C.A.), refd to. [para. 179].

Kowalchuk v. Adduri (1990), 71 Man.R.(2d) 144 (Q.B.), refd to. [para. 181].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 262].

Ciarlariello et al. v. Schacter et al., [1993] 2 S.C.R. 119; 151 N.R. 133; 62 O.A.C. 161, refd to. [para. 284].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 309].

McArdle Estate v. Cox et al. (2003), 327 A.R. 129; 296 W.A.C. 129; 2003 ABCA 106, refd to. [para. 312].

Bohun v. Segal - see Bohun v. Sennewald et al.

Bohun v. Sennewald et al. (2008), 250 B.C.A.C. 231; 416 W.A.C. 231; 2008 BCCA 23, refd to. [para. 315].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 317].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310, refd to. [para. 318].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 319].

Jackson v. Kelowna General Hospital et al. (2007), 237 B.C.A.C. 269; 392 W.A.C. 269; 2007 BCCA 129, leave to appeal refused (2007), 376 N.R. 396; 256 B.C.A.C. 320; 431 W.A.C. 320 (S.C.C.), refd to. [para. 320].

Smith and McIntyre v. Sellers and Saskatchewan (1982), 17 Sask.R. 246 (Q.B.), refd to. [para. 394].

McGeoch et al. v. Arciszewski et al., [1999] O.T.C. 95 (Sup. Ct.), refd to. [para. 395].

Elofson v. Davis et al. (1997), 195 A.R. 321 (Q.B.), refd to. [para. 396].

Ketchum v. Hislop (1984), 54 B.C.L.R. 327 (S.C.), refd to. [para. 407].

Mullins v. Levy et al., [2005] B.C.T.C. 1217; 258 D.L.R.(4th) 460; 2005 BCSC 1217, refd to. [para. 407].

Nagy v. Canada et al. (2005), 373 A.R. 338; 2005 ABQB 26, refd to. [para. 408].

Muir v. Alberta (1996), 179 A.R. 321 (Q.B.), refd to. [para. 409].

Dix v. Canada (Attorney General) et al. (2002), 315 A.R. 1; 2002 ABQB 580, refd to. [para. 431].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2), [2002] 1 S.C.R. 678; 283 N.R. 233; 299 A.R. 201; 266 W.A.C. 201; 2002 SCC 19, refd to. [para. 431].

Statutes Noticed:

Limitation of Actions Act, R.S.A. 1980, c. L-15, sect. 51(b), sect. 51(c), sect. 55(a), sect. 57 [para. 81].

Authors and Works Noticed:

Klar, Lewis N., Tort Law (3rd Ed. 2003), pp. 7-10 [para. 211]; 40, 41 [paras. 183, 259]; 47 [para. 261]; 54 to 61 [para. 182].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), p. 72 [para. 283].

Osborne, Philip H., The Law of Torts (2nd Ed. 2003), p. 226 [paras. 184, 260].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), generally [para. 147]; pp. 45 [para. 281]; 54 [para. 284]; 60 [paras. 302, 303]; 428 [paras. 212, 213].

Rainaldi, Linda D., Remedies in Tort (1987) (Looseleaf), pp. 7-11, 7-16, 7-18 [para. 210].

Counsel:

Richard N. Billington, Q.C., and Elizabeth Soper, for the plaintiff;

Steven T. Eichler and Erika Carrasco, for the defendants, Sharon Stewart, Calgary Regional Health Authority, Metro-Calgary and Rural General Hospital District No. 93, Holy Cross Hospital and Janet Hoffman;

Tara S. Mah and Karen J. Pirie, for the defendants, Dr. Roland F. Lynch and Dr. Robert J. Herget.

This matter was heard on September 10-12, September 17-21, 24-28, October 1-5, 9-11 and 25, 2007, by Clark, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on July 21, 2008.