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Monday Morning Case Bites for April 29, 2019

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

Edited by Amanda Kostek & Christie Dewar

Balogun v Pandher, 2019 ABQB 291
Expert Report | Admissibility | Deceased Experts | Form 25

Amble Ventures (Alberta) Ltd v D.B.K. Engineering Ltd, 2019 ABQB 287
Limitations Act | Third Party Claim

Ioannides v Kamdar, 2019 ABQB 265
Application for Long Delay | Will Say Statements

Sack v. Lange, 2019 CarswellAlta 475
Negligence | Sport | Modified Standard of Care

Balogun v Pandher, 2019 ABQB 291

This was a hearing related to the admissibility of expert reports in advance of trial. The Plaintiff wanted to rely on expert reports of a TMJ specialist and a psychiatrist, both of whom had died. The Court directed that portions of the expert reports dealing with observations and treatment were admissible, but their opinions were not. Although the reports were heresay, they were admissible on a principled approach as they met the necessity and reliability requirements. Any diagnoses or opinions were admissible for the fact that they were made but not for their truth:

[18]           Dr. Buck’s reports are hearsay but they are largely admissible based on a principled analysis. They provide the only evidence concerning a TMJ examination of Mr. Balogun proximate to the time of the motor vehicle accident. While Mr. Balogun attended another TMJ dysfunction specialist. there is no report from the doctor. Consequently the necessity requirement is met. Those parts of Dr. Buck’s report that deal with his observations, testing, treatment and those that record the history taken meet the threshold of reliability. However any diagnosis or opinions are only admissible for the fact that they were made but not for their truth.

[19]           The same analysis applies to Dr. O’Kelly. He provides the only evidence concerning a psychiatric evaluation of Mr. Balogun proximate to the time of the accident. Consequently, the necessity requirement for Dr. O’Kelly’s report is met. Those parts of his letter that deal with his observations, testing, evaluation, and those that record the history taken meet the threshold of reliability. However any diagnosis or opinions are only admissible for the fact they were made but not for their truth.

The Plaintiff also sought to introduce lay witness evidence from a doctor who did not want to appear as an expert, and a physiotherapist.  The Court ruled that neither could provide expert testimony on the basis that they had not submitted Form 25s:

[24]           Mr. Balogun intends to call both Dr. Sacks and Mr. Darren Frolich (physiotherapist) as lay witnesses at trial but also seeks to have them provide expert evidence to the court. Form 25s have not been submitted for either witness.

[25]           In view of the fact that Form 25s have not been submitted, I conclude that neither Dr. Sacks nor Mr. Frolich is entitled to provide opinion evidence. In addition, Mr. Frolich practices at the same physiotherapy clinic as Mr. Yong, whom Mr. Balogun intends to call as an expert witness. Therefore, to the extent Mr. Frolich would provide any opinion evidence, that evidence would contravene the general limitation of one expert per subject pursuant to Rule 8.16.

Finally, the Defendant raised issues with deficient Form 25s related to other experts.  The Court dealt with the deficiencies on a case by case basis, and only allowed specific expert reports to be admitted:

[26]           The Defendant also raises issues concerning the contents of Mr. Balogun’s Form 25 in relation to Dr. James Adams (G.P.), Mr. Tim Hall (occupational therapist) and Anthony Yong (physiotherapist). Several of these Form 25s do not specifically identify the expert reports that are to be attached and, in the case of Mr. Yong, some of the records attached include a Progress Report that postdates the execution of Mr. Yong’s Form 25.

[27]           I direct that all documents other than the three summary reports shall be removed from the Form 25 of Dr. James Adams (G. P.), all documents other than the report dated February 7 and 8, 2008 shall be removed from the Form 25 of Mr. Tim Hall and the Progress Report that postdates the execution of Mr. Yong’s Form 25 be removed.

Amble Ventures (Alberta) Ltd v D.B.K. Engineering Ltd, 2019 ABQB 287

This was a successful application to dismiss a Third Party Claim on the basis that it was statute barred under section 3(1.1) of the Limitations Act. The claim was commenced in 2013 as a result of deficiencies in a building project completed in 2009-2010. The Defendant obtained an extension to file the defence, and in fact did not file a defence until October of 2017. It then issued a Third Party Claim in April of 2018. The Court noted the following factors in concluding that the claim was statute barred:

[7] The fact that DBK sought and obtained an indulgence from the plaintiffs, allowing DBK over 4 years until it filed a statement of defence, in October of 2017, does not mean that the limitation period ceased to run with respect to any potential contribution claim against Master Mechanical.

[8] It is well and good for the plaintiffs and DBK to take time between 2013 and 2017 in order to attempt to resolve their dispute, but Master Mechanical was blissfully unaware of the existence of the dispute.

[9] In the interim, Master Mechanical disposed of most of their documents. Their employees, who were involved in the work, departed. It was only in 2018 that Master Mechanical became aware that it was being sued for work it had done in 2009 and 2010.

[10] DBK’s deponent hints that facts regarding the work done by Master Mechanical, and therefore the need to claim against Master Mechanical, only became known when DBK received and reviewed the documents referenced in the plaintiffs’ affidavit of records (in February of 2018) and in Master Mechanical’s affidavit of records (in March of 2019) but ‘hints’ is the operative word. The allegation is made in only the vaguest of language, with no particulars given.

Ioannides v Kamdar, 2019 ABQB 265

This was a successful application to dismiss an action for long delay. The issue in the case was whether four “will say” statements significantly advanced the action. The Court concluded that while “will say” statements should be encouraged, in this case, they did not provide anything new:

[9] We are to apply the functional approach to the answers to undertakings. None of the new “will-say statements” go directly to the events raised in the lawsuit. They are primarily about the character of one of the Defendants. (One of the statements is called a ‘letter of reference’). If they were admissible at all, they would be ‘similar-fact’ evidence; suggesting that the Defendant was of bad character and likely to have done some of the things alleged in the claim. As valuable as these statements might have been in other circumstances, they do not constitute a significant advance. They do not tell this party something that he does not already know. Regrettably for the Plaintiff, the other answers do not constitute a significant advance either.

The claim was dismissed for delay.

Sack v Lange

This was a trial on the issue of liability in which the Plaintiff was unsuccessful. This was a personal injury action brought by a back catcher as a result of being struck by a bat during a slow pitch game. The Plaintiff had played slow pitch throughout her childhood and then as an adult. She was not wearing protective gear at the time of the incident. Although the official rules recommended protective gear, no one in the league wore it. In an oral decision, Justice Hollins concluded that “the degree of inherent risk to any given sport or activity modifies the applicable standard of care”:

12         I also agree with Justice Lee’s description of the interplay between inherent risk and the standard of care, namely, that the degree of inherent risk to any given sport or activity modifies the applicable standard of care; Rozenhart v. Skier’s Sport Shop (Edmonton) Ltd. [2002 CarswellAlta 1067 (Alta. Q.B.)]. The reason for this is that the more dangerous the activity, the harder it is for participants to conduct themselves in a way that obviates all risk of harm. In reality, taking into account the inherent risks of any particular sport operates not to reduce the standard of care, but rather to avoid unfairly raising the standard of care for competitors.

The Court noted that the game was friendly, and intended to be a social activity.  However, it was also competitive and participants were experienced.  It was foreseeable that a bat may be thrown in the course of the game, and on that basis, the standard of care did not require parties to avoid all injury.  The seriousness of the Plaintiff’s injury also did not prove breach of a duty of care:

13        So the test remains, what would a reasonable competitor, in the place of Mr. Lange, have done or not done? In assessing the level of inherent risk in this case the plaintiff’s counsel urged me to focus on the social aspect of the game. This was a mixed gender sport. The participants sometimes consumed alcohol while playing, although the defendant here did not consume alcohol the day of this game. While I had no evidence about other games, the defendant described this game as friendly and said there was no aggressive posturing or talk between the teams. I accept that this tournament was intended to be a social and fun activity.

14        On the other hand, this was a high level of competitive slo-pitch. These teams were playing in an actual organized tournament. This was not a Sunday picnic where poorly prepared or unskilled people might spontaneously decide to engage in some sport. Both parties had played many years of slo-pitch and baseball or softball. Both had seen, to varying degrees, the kinds of injuries that could be suffered by participants which included serious injuries from errant balls and errant bats, among other things. Although Ms. Costello had never had a bat thrown in her direction at head level before she had previously had a batter whose improperly thrown bat hit her foot.

15        For experienced participants of this sport it simply cannot be the case that the possibility of a bat being thrown or released is beyond imagination if not observation. We cannot, therefore, say that the standard of care is to avoid all injury in the context of a slo-pitch game. Nor can we use the fact that the plaintiff was injured, even badly injured, in order to prove a breach of duty of care. In other words, we cannot use the outcome to say, “well, the defendant was obviously negligent or otherwise the plaintiff would not have been injured.” This approach would mean that all accidents would be legally actionable and not all accidents are.

The Court directed that the reasonable batter would do the following:

18        What would a reasonable competitor do? He would learn how to swing a bat safely and practice that form. He would learn how to safely dispose of his bat after hitting a ball. He would take some notice of where the people were positioned around him when he was batting or otherwise playing the game. He would use proper and well maintained equipment. He would ensure that his bat had a good grip to avoid slippage. He would wear a batting glove to assist with gripping the bat and reducing the chances of accidently losing his grip on the bat.

In this case the batter did all of that.  However, it is also reasonable to expect a batter would have a number of things running through his mind.  In this case the batter’s left hand came off the bat early.  The Court concluded that this was not negligent, and the claim was dismissed:

21        He did nothing different on June 12th, 2010. He was using his regular bat and wearing a batting glove on both hands as he always did. He went to the plate hoping for a hit as was always the case. He knew roughly but not precisely where the umpire and catcher were behind him. He swung, intending to swing the same way as he always did. In fact, he said there was nothing different about his swing that day except that his left or dominant hand came off the bat as he swung around, leaving only his right hand to stop the momentum of the bat which it did not do.

22        While unintentional acts can be negligent, there must still be some failure to take appropriate care in order to find liability. In my opinion, Mr. Lange did not do or fail to do anything reasonably expected of a prudent person taking reasonable care not to injure his or her fellow competitors and so the claim against him is dismissed.