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Monday Morning Case Bites for April 20, 2020

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Steven Graham

4075447 Canada Inc v WM Fares & Associates Inc, 2020 ABCA 150
Inordinate Delay | Rule 4.31

Intact Insurance Company v Unruh, 2020 ABQB 260
Procedural Fairness | Appeal of an Umpire’s Decision | Evidence

Hemraj v Caron & Partners LLP, 2020 ABQB 246
Liability Trial | Professional Negligence | Injuries lasting less than 2 years

De Vos v Alberta (Transportation), 2020 ABQB 234
Negligence | Consumer Protection Act | Application to Strike for not disclosing valid cause of action

4075447 Canada Inc v WM Fares & Associates Inc, 2020 ABCA 150

In the context of an appeal of a claim on inordinate delay, the Alberta Court of Appeal directed that there is no presumptive 10 year ceiling on litigation: 

[19]           The appellant also claims there is a presumptive ceiling of approximately 10 years for a matter to be trial ready. In doing so, it misinterprets the decision in Duraguard Fence Ltd v Badry, 2018 ABQB 882, where the Master stated at para 7: 

My process in dealing with these applications is to begin by applying a coarse filter. In the most general terms, the evidentiary ‘best before date’ is probably about ten years, which, in turn, may be affected by factors such as whether the evidence is recorded and how much of the case depends on memories. Typically, (if there is a typical case) a lawsuit that is vulnerable to be struck for delay is one that is about ten years (plus), the questioning is not complete and the matter is not set for trial. But there are always exceptions and the analysis has to be performed on a case-by-case basis. 

He then went on to give examples of cases that were dismissed with delays of less than 10 years. As stated, the analysis must proceed on a case-by-case basis. There is no 10-year presumptive ceiling. 

Reliance on mandatory mediation provisions as a reason for delay did little to assist the appellant as an excuse: 

[17]           The appellant relies on the mandatory mediation rule as an excuse for its delay. With or without the rule, it was open to the courts below to conclude that litigation steps did not need to come to a halt during the years spent discussing mediation processes. Significantly, the parties never participated in mediation; they only discussed mediation. It cannot be said in this case that the appellant was devoting resources to mediation and was unable to prepare for litigation. 

The Court of Appeal confirmed that the Defendants’ conduct can be taken into account in applications for delay, but in this case that did not assist the appellant, because a Form 37 certified that undertakings had been answered: 

[20]           The appellant also attempts to point to delay by the defendants. Defendants’ delay can contribute to an excuse for delay: see Transamerica at paras 28-31 and the cases cited. The appellant alleges, for example, that the respondents are to blame for not having conducted their questionings and that the chambers judge gave that fact insufficient weight. The litigation plan, imposed by court order, set a schedule in which the defendants’ questioning was to follow the plaintiff’s questioning. The plaintiff never completed its questioning, and never informed the other parties that it was abandoning questioning until after the Rule 4.31 application was filed. The defendants cannot have intuited that they should proceed to conduct their questionings. The appellant also complains about the delay in one defendant’s failure to answer undertakings in 2008. But as the Master noted, the appellant certified on its form 37 that “any undertakings have been discharged”. It cannot now claim delay in waiting for undertakings. There was no error below in rejecting the argument about defendants’ delay. 

Interestingly, the appeal was heard April 8th by way of teleconference. 

Intact Insurance Company v Unruh, 2020 ABQB 260

This was a judicial review of an Umpire’s Order arising out of a dispute between an Insurer and its Insured in relation to a residential home damaged by fire in the Fort McMurray wildfires.  In rendering its decision, the Umpire referred to evidence not tendered by either party.  The Court held that this did not breach the Umpire’s duty of procedural fairness: 

[31]           For the foregoing reasons, I find that the Umpire did not breach his duty of procedural fairness by referring to the reports and aerial map in the Decision. That information provided context, and was information that was well known and not in dispute. 

[32]           As for the scientific study that was referred to, I find that it was unnecessary for the Umpire to have included it. In his Decision, the Umpire says: “I note as an aside that there are scientific studies…”. I find that the reference to the scientific study was just that — an aside  — that does not change or support the Umpire’s finding that the Home was contaminated. 

[33]           In the circumstances, I do not find that the Umpire breached his duty of procedural fairness by having included a reference to the scientific study as he did as “an aside”. 

After reviewing the other grounds for Judicial Review, the Court concluded that the Umpire’s decision was reasonable. 

In a collateral decision with similar issues, Intact Insurance Company v Parsons, 2020 ABQB 258, the Court also concluded that the Umpire’s decision was reasonable. 

Hemraj v Caron & Partners LLP, 2020 ABQB 246

The Plaintiff was injured in a 3 car collision.  After proceeding to a liability Trial and losing, the Plaintiff sued his former lawyers.  The Court accepted that the collision was misdescribed by counsel in the original Statement of Claim, but concluded that there was no causal link between that misdescription and the Plaintiff’s loss at Trial on liability.  The Court provisionally assessed general damages at $60,000 for soft tissue injuries to the Plaintiff’s neck and shoulder, but the case provides very little detail concerning the amount and invasiveness of treatment.  The Court does classify the injury as minor and lasting less than 2 years: 

[119]      The amount of non-pecuniary damages is based on my acceptance of the conclusions of Dr. Fairbanks. I find Mr. Hemraj suffered a probable extension-flexion sprained neck and back from the motor vehicle accident. I further accept Mr. Hemraj suffered from a minor disability that lasted for approximately ten months from the time of the accident, based on Dr. Fairbanks’ assessment, made six months after the accident, that Mr. Hemraj’s “symptoms should be minimal to non-existent within a further three to four months” (p 5). 

[120]      I do not accept that any of Mr. Hemraj’s symptoms or injuries that remained more than one year after the accident were caused by or related to the accident in any way. Although Mr. Hemraj may have felt that he continued to suffer from symptoms and injuries for more than one year after the accident, I find that he has not established that any such symptoms and injuries were caused by or related to the accident. 

The Court rejected the Plaintiff’s argument that he was entitled to earning capacity on the following basis: 

[137]      The trial evidence, for multiple reasons, does not support Mr. Hemraj’s claim that the Accident, or any injuries resulting from the Accident, prevented him from driving big buses at a more lucrative hourly rate. 

[138]      In testimony, Mr. Hemraj expressed his interest in driving a big bus as it offered higher pay and benefits. He was offered the opportunity for big bus training but declined because of issues from the Accident, notably a shoulder injury impacting steering wheel movability. 

[139]      During cross-examination, Mr. Hemraj agreed he continued to drive a shuttle bus after the Accident. He acknowledged receiving an employee commendation letter commending his driving record and commitment to safety about one year after the Accident. He acknowledged receiving the highest rating in all 22 categories reviewed in a Calgary Transit Evaluation Form. That evaluation occurred about three and a half years after the Accident.  

[140]      Mr. Hemraj also acknowledged a May 20, 2007 letter from Dr. Adams indicating (by box check) that he satisfied the medical classification for driving a large bus. 

[141]      Approximately seven months after the Accident, Mr. Hemraj began employment with Boardwalk Rental Communities in Calgary. He was responsible for performing maintenance and repair duties at that company’s residential apartments. In this employment application Mr. Hemraj indicated he had no injuries or illnesses that would hinder job performance. He understood related duties would only require “light” physical work. 

[142]       I find that Mr. Hemraj has failed to establish any loss of earning capacity that can be attributed to the Accident. The evidence does not support Mr. Hemraj’s position. The motor vehicle accident did not prevent Mr. Hemraj from driving a large bus. Rather, I find that he chose to not pursue that opportunity. 

De Vos v Alberta (Transportation), 2020 ABQB 234

This action was commenced by the Plaintiff, Louis de Vos, for alleged damages he suffered as a result of his attempt to renew his driver’s license following his 75th birthday. The Plaintiff attended his physician, as medical certification is required by the Province to renew a driver’s license for anyone over 75, and was administered a number of tests to assess his cognitive abilities. The Plaintiff did not meet the threshold on some of these tests, and was sent for further assessment and screening. Ultimately, the Plaintiff was able to renew his license, but the process was delayed by the various tests he was required to undertake.   

CBM Lawyers defended this action on behalf of Dr. Bonnie Dobbs, a University of Alberta researcher who developed the SIMARD MD – a screening tool used to assess cognitive function. The SIMARD MD test was administered to the Plaintiff by the Plaintiff’s physician, and predicted that the Plaintiff was a medically at-risk driver. The Plaintiff claimed that the result of the SIMARD MD test was inaccurate and, in part, resulted in his inability to renew his driver’s license for a time.   

The Court ultimately concluded that, as against Dr. Dobbs, the claim had no reasonable chance of success. There was no duty of care that Dr. Dobbs owed, as a researcher, to the Plaintiff, that would amount to negligence on her part. 

[111]      De Vos has not specifically plead that Dobbs owes him a duty of care. The pleadings do not establish a close or direct relationship between De Vos and Dobbs. De Vos plead that Dr. Feaver, as agent for Dobbs, misrepresented to him that the SIMARD MD test would indicate whether he was a cognitively impaired, medically at-risk driver. However, no facts are plead to support an agency relationship exists between Dr. Feaver and Dobbs. 

[112]      Dr. Dobbs, through her research at the University of Alberta, developed and validated the SIMARD MD screening tool for use by physicians in a clinical setting to assist them in identifying drivers with cognitive impairment to make immediate decisions regarding driving ability. The interpretation of the results and the conclusions drawn are left to the physician who administers the screening tool. The fact that De Vos failed the SIMARD MD test does not mean Dobbs breached any duty of care owed to him. The fact that De Vos passed another cognitive test (the MMSE), a subsequent medical examination, an on-road driving test or that he ultimately renewed his operator’s licence does not mean that the SIMARD MD was not an accurate screening tool. No facts are plead that directly invalidate the SIMARD MD test or criticize Dobbs’ research or findings. 

[113]      Dobbs had no role in discussing the SIMARD MD screening tool with De Vos, in administering the test or interpreting its results, in recommending any further tests to undergo or in making any decisions with respect to his operator’s licence renewal. As the researcher who developed the SIMARD MD screening tool, Dobbs is far removed from the events described by De Vos in the Amended Statement of Claim related to the renewal of his operator’s licence. The facts plead do not disclose a relationship of proximity in which failure by Dobbs to take reasonable care might foreseeably cause loss or harm to De Vos. 

[114]      I find that the claims brought by De Vos against Dobbs in negligence have no reasonable prospect of success and cannot succeed as no common law duty of care was established. Therefore, I find that the circumstances warrant that the claims advanced by De Vos in negligence against Dobbs be struck out as the pleadings disclose no reasonable claim. 

Further, the Court concluded that this was not a scenario in which the provisions of the Consumer Protection Act would apply, since Dr. Dobbs was not a supplier of the SIMARD MD, and the circumstances under which the Plaintiff was administered the SIMARD MD test by his physician were not a “consumer transaction” as defined by the Act.  

[129]      I find that the circumstances of De Vos being administered the SIMARD MD screening tool by Dr. Feaver do not fall within the ordinary meaning of “consumer transaction” in the context and scheme of the CPA. Reading the words “goods” and “services” in their “entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act” the SIMARD MD screening tool is neither “goods” or “services” within the meaning of s 1(1)(e) and s 1(1)(k) of the CPA. 

[130]      De Vos has not shown the SIMARD MD screening tool was inaccurate or that Dobbs and he engaged in a consumer transaction. Therefore, representations made by Dobbs about the SIMARD MD screening tool do not amount to unfair practice within the meaning of s 6(2)(c) of the CPA by use of exaggeration, innuendo or ambiguity as to a material fact with respect to a consumer transaction. 

[131]      As De Vos has not shown he was a consumer or that Dobbs was a supplier, the CPA does not apply to find Dobbs engaged in unfair practice within the meaning of s 6(4)(a) by doing or saying anything that might reasonably deceive or mislead a consumer. The CPA does not apply to find Dobbs engaged in unfair practice within the meaning of s 6(4)(c) as De Vos has not plead facts that show the SIMARD MD screening tool was represented by Dobbs to be a good or service which has performance, characteristics, uses, benefits or other attributes that it does not have. 

 The Claim against Dr. Dobbs was therefore struck.