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Monday Morning Case Bites for March 30, 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

Malig v Kaur, 2020 ABCA 111
Pre-Judgment Interest

801 Seventh Inc v CNOOC Petroleum North America ULC, 2020 ABQB 198
Service outside Canada | Hague Convention for Service | Validation of Service

Warner v Calgary Regional Health Authority (Rockyview General Hospital), 2020 ABQB 172
Personal Injury | Trial award | Loss of Earning Capacity

Malig v Kaur, 2020 ABCA 111

The Plaintiff appealed the Trial Judge’s refusal to grant pre-judgment interest in a dog bite case where the dog bite occurred in 2011, but the matter was not tried until 2018.  The Court of Appeal overturned that portion of the decision and concluded that prejudgment interest should be awarded on the following basis: 

[2]               Under the Judgment Interest Act there is a presumption that interest will be awarded, unless there are compelling reasons not to do so: 216927 Alberta Ltd v Fox Creek (Town), 1990 ABCA 29 at para 51; Aetna Insurance Company v Canadian Surety Company, 1994 ABCA 270 at paras 6-7. While there may be circumstances in which an unreasonable delay in the litigation may justify such a reduction, this is not that case. 

[3]               We are satisfied that the trial judge erred by deciding this issue without submissions and grant the appeal. We confirm that the interest in the amount of $4,204.13 is payable. 

801 Seventh Inc v CNOOC Petroleum North America ULC, 2020 ABQB 198

The Court granted an order validating service of a claim on a Chinese defendant. The Plaintiff obtained an order for service outside of Canada, and delivered the claim and order to the Chinese Central Authority as designated under the Hague Convention to be served. After several months passed, and numerous inquiries by the Plaintiff as to whether service had been achieved received the same response indicating service was “out for processing”, the Plaintiff obtained the order validating service.  

The application to validate was brought under the following Hague Provisions: 

Article 15(2) Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled – 

(a)   The document was transmitted by one of the methods provided for in this Convention, 

(b)   a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document, 

(c)   no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed. 

Once service was validated, the Chinese entity sought to set it aside.  The Court declined on the following basis: 

[37]           Canada has made the declaration contemplated in Article 15(2), and Rule 11.27(1) and (4) authorize me to make an order validating service of the Amended Counterclaim if I am satisfied that the method of service brought or was likely to have brought the document to the attention of the person to be served. 

[38]           An order validating service can be obtained if the commencement document was properly submitted to the Central Authority and there is proof either that service under the Hague Convention was accomplished or that it was frustrated within the meaning of Article 15: Acciona at para 22. In these circumstances where China has not produced a certificate confirming service or setting out the reasons that have prevented service, it amounts to a failure of service and 801 is entitled to have service validated under Article 15(2) of the Hague Convention. 

[39]           To obtain an order validating service, 801 does not need to demonstrate exceptional circumstances. Under Article 15(2)(c) (and now under Division 8 of the Rules), it must have complied with the Hague Convention and made every reasonable effort to obtain proof of service from the Contracting State. 

[40]           I am satisfied that 801 complied with the requirements of the Hague Convention, that more than six months has elapsed since the date of transmission of the documents, that six months was adequate in the circumstances, and that 801 made reasonable efforts to obtain a certificate from the Contracting State by diligently inquiring of the Central Authority of China. 801 sent five letters to the Central Authority of China requesting an update with respect to service, receiving the identical response each time that service was “under processing”. 801 was not obligated to do more before it applied to have service validated.   

Warner v Calgary Regional Health Authority (Rockyview General Hospital), 2020 ABQB 172

This was a personal injury Trial arising out of an injury when the Plaintiff, Laurie Warner was transferred from a commode to a hospital bed.  She alleged that her left hip hit a guard rail on the bed, and her foot hit either the guardrail or mattress.  She alleged left leg and foot paralysis, and Complex Regional Pain Syndrome. 

The Plaintiff was born in 1967, and had pre-existing Medullary Sponge Kidney Disease for which she was frequently hospitalized in the years leading up to this incident.  She estimated 35 prior hospitalizations.  She had been on disability for years at the time of this incident.  

The incident is described as follows: 

[17]           On February 5, 2005, shortly after Ms. Warner stopped taking the diuretic she previously used to treat MSK, the Transfer Accident occurred at the Rockyview. Three nurses were to be used in transferring a patient in Ms. Warner’s weakened condition to the commode from her bed and from the commode to a toilet, as well as for the return trips. Ms. Warner had been on the toilet for some time and wished to return to her bed and she called for assistance. There were not enough nurses available to do a three-person transfer and so they suggested that if she wanted to return to her bed they would have to make do with a two-person transfer. Ms. Warner agreed. The upshot of it was that during the course of the transfer, Ms. Warner was dropped in such a way that her left hip struck the mattress or the bed frame or both and her left foot struck the bed rail. Ms. Warner testified that she instantly experienced nerve pain running up and down her leg and that her left foot became internally rotated. It also became red and inflamed. Her whole leg was extremely painful and sensitive to the extent that a breeze from a nurse walking past her caused severe pain to run up and down her leg. Initially, she was unable to bear having her leg covered with a bed sheet. She required a device to be placed around (but not touching) her leg and foot which kept the sheet from contact with her foot. She testified that the pain felt, at times, like electricity running up and down her leg with spasms that would go into her foot and toes. 

Following the incident the Plaintiff alleged she was unable to move her leg and foot.  She underwent surgery to correct the internal rotation of her foot.  She was ultimately reduced to using a wheel chair and crutches and received branch blocks every few months. 

Complicating the matter was a subsequent C Defficile infection a year after the hospital incident. 

In terms of earning capacity, the Court accepted that she still suffered from many of the same symptoms that put her on disability in 1997: 

[73]           Although I find that Ms. Warner is better able to manage her pain and her new diuretic allows her to better manage her electrolyte levels, the evidence is that she continues to suffer from much of the same symptoms that caused her to stop working in 1997. She continues to pass weekly kidney stones, some without pain and some with pain lasting from 1-2 days; she continues to take doses of maintenance antibiotics; she has frequent urinary tract infections and kidney infections; she has pain associated with urination and has to urinate with urgency and frequency; and she takes morphine, Percocet, and buscopan to treat her pain associated with her renal/kidney conditions. There was no indication that her condition would change going forward. 

However, the Court still awarded $50,000 in loss of earning capacity on the following basis: 

[75]           As to the loss of earning capacity, the failure to plead this head of damage does not stop me from awarding it. This Court in Yu v Befus, 2003 ABQB 451 dealt with this exact issue at para 25: 

For reasons cited above, it is difficult to quantify a claim for loss of earning capacity. I note that the plaintiff raised this claim only in written argument at the conclusion of the trial. This claim was not raised in the pleadings nor was any evidence relating directly to it presented at the trial. The defendant has suggested that for this reason alone this claim should not be entertained by the Court. There are facts from the trial, however, from which this argument may be made. As long as there are facts in evidence from which the argument may be made I am satisfied that it is an argument which the Court must address. 

[76]           Damages for loss of earning capacity can be awarded when no future loss of income can be calculated, and where there is some evidence showing that the injuries are likely to impair the plaintiff’s future earning capacity: Foo-Fat v Ahmed (1997), 208 AR 218 at para 75 (QB); Olson v General Accident Assurance Company of Canada, 2001 ABCA 91 at para 24. 

[77]           Loss of future earning capacity cannot be measured precisely. As such, the plaintiff merely needs to establish that there is a chance that in the future they will suffer actual pecuniary loss because their earning capacity is diminished: Dyck v Wilkinson, 2004 ABQB 731 at para 196, citing Newman v LaMarche and Black (1994), 1994 CanLII 4075 (NS CA), 134 NSR (2d) 127, [1994] NSJ No 457 (CA). The test to determine whether to award Ms. Warner with damages for loss of earning capacity is: whether there is a real and substantial possibility that she has been rendered less capable of earning an income “from many sources of employment, is less marketable to potential employers, and is less able to take advantage of opportunities that may become available”: Chisholm v Lindsay, 2012 ABQB 81 at para 114. As noted by this Court, mere speculation is insufficient: Yu v Befus at para 26.[78]           Here, I find that there was sufficient evidence presented at trial that there is a chance that in the future, Ms. Warner will suffer pecuniary loss because her earning capacity is diminished. The injuries caused by the Transfer Accident would render her less marketable and less able to take advantage of any arising opportunities, specifically due to her difficulty ambulating and the pain she suffers in her left leg. 

The Court accepted the following test for future care claims: 

[80]           The test for assessing future cost of care is whether the cost is “reasonably necessary to preserve the patient’s health”: Sutherland v Encana Corporation, 2014 ABQB 182 at paras 623-625, citing Milina v Bartsch (1985) 1985 CanLII 179 (BC SC), 49 BCLR (2d) 33 (BCSC). The plaintiff must show there is “some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional”: Gregory v Insurance Corporation of British Columbia, 2011 BCCA 144 at para 39. 

The Court then reduced the amount claimed on the following basis: 

[83]           There are several items claimed which have not been established as being reasonably necessary and linked to the experts’ assessment of Ms. Warner’s injuries and the recommended treatment. I am not satisfied that Ms. Warner’s costs related to home gym equipment and landscaping unrelated to household management are necessary or beneficial. These costs are beneficial to everyone, whether or not someone has had the misfortune of being involved in an accident. 

[84]           I also disallow the claim for the home renovation costs that were not shown to be associated with making Ms. Warner’s home more accessible to her. Further, I reduce Ms. Warner’s claimed hourly replacement range for housekeeping services items to reflect a lower hourly rate, as per the evidence presented by the Defendant of the going hourly rate for these services. 

[85]           There was also evidence that Alberta Health Services is already covering the cost of Ms. Warner’s personal care, pursuant to the Self-Managed Care Agreement. Awarding Ms. Warner damages for this would result in double recovery. I reduced the future cost of care amount to reflect this. 

[86]           There was no evidence presented to justify the high amounts of future considerations that were calculated into the future costs of care. I reduce those accordingly. Further, I accept Ms. Chisholm’s evidence recommending that Ms. Warner be provided with weekly personal care assistance, instead of the costs of two live-in caregivers, which was calculated into the Plaintiffs’ position on future cost of care. 

In addition, the award was further reduced for contingencies: 

[87]           The amount of damages claimed for future cost of care by the Plaintiffs does not include a health contingency for Ms. Warner’s future household services. I find that Ms. Brown’s proposed reduction is helpful and I accept her views that this reduction must be calculated into the future household services. I reduce the cost of those services by 20% to reflect health contingencies. 

[88]           Lastly, I am reducing the future cost of care award by 10% to reflect the impact of the C. Difficile infection. I reduce future cost of care because the C. Difficile infection weakened Ms. Warner’s core strength and some of her future costs are related to difficulty with mobility.  

Damages were assessed as follows:

  • General damages for non-pecuniary loss – $234,000.00 plus interest; 
  • Future loss of earning capacity – $50,000.00 plus applicable interest;   
  • Future care costs – $1,019,020.11 plus applicable interest; 
  • Special damages – $199,515.95 plus applicable interest; and 
  • In trust claim for Mr. Warner – $70,000.00 plus applicable interest. 

Presumably the suggestion of applicable interest on future heads of damages was in error.