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Monday Morning Case Bites for October 15, 2018

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

Edited by Amanda Kostek & Christie Dewar

Graham Group Ltd v Labas Estate, 2018 ABQB 848
Questioning of Former Employees l Costs l Payable

MacCarthy v Wooff, 2018 ABPC 221
Medical Malpractice l Veterinary Medicine l Informed Consent

Bintto v Wozny, 2018 ABPC 230
Vehicle Sale l Undisclosed Mechanical Problems l Contract Breach


Judgment Highlights

Graham Group Ltd v Labas Estate, 2018 ABQB 848

The issue in this case was whether Defendants examining former employees of the Plaintiff should pay for the costs of those examinations upfront. The Court encouraged producing witnesses for examination, but was reluctant to require those costs to be paid up front:

[11] Both the rule and the decided cases affirm that the Defendant in this case will have to pay the costs for questioning these additional employees in any event of the cause. But in the absence of circumstances that might suggest that security would be appropriate, I am reluctant to order that the costs be payable up-front. At the very least, this might impair a set off at the end of the day.


MacCarthy v Wooff, 2018 ABPC 221

This was an unsuccessful medical malpractice claim brought against a Veterinary Ophthalmologist. The Court concluded that the test for informed consent is the same whether the Plaintiff is a human or an animal:

[33] It is well accepted that there is a duty placed upon a healthcare professional to disclose the material risks of a procedure or treatment recommended to the patient[1]. On the whole, I see no reason to differentiate between a healthcare professional providing services to a person as opposed to an animal. That is to say, when dealing with veterinary care, informed consent must be obtained from the person who has care of the animal. In order for the Plaintiff to succeed, it must be established that the professional did not disclose material risks that ought to have been disclosed, and that had those risks been disclosed, a reasonable person would not have agreed to undergo the procedure or treatment of the animal.

The Court noted that medical practitioners are faced with time and resource constraints. In this case the Plaintiffs were upset that they did not get an immediate appointment with the ophthalmologist, but at the same time, they complained that they were under duress when the Veterinary Ophthalmologist requested their consent for a CT scan and biopsy. In this case the Court concluded that the Plaintiffs were not under duress, and the available facts were given to provide informed consent:

[38] After receiving the results of the blood test, Dr. Wooff consulted Dr. Sereda and they agreed that a CT scan rather than an ultrasound would be the best course of action. Dr. Wooff then phoned Dr. MacCarthy and he gave his verbal consent to the CT scan, knowing that it would be done under a general anaesthetic. She also indicated that she may do a biopsy, and he did not object. While Dr. Wooff did indicate that there was a time slot available later that afternoon for the CT scan to be done, I am not satisfied that this amounted to duress being placed on Dr. MacCarthy to make a decision on the spot. He did not request time to consider the matter further, but rather after briefly consulting with his wife who delegated her authority to him for the decision, he approved the CT scan. While he argues that he would not have approved the CT scan had he been told by Dr. Wooff that cancer was the most likely cause of the retrobulbar mass, he knew all the essential facts when he made his decision. He knew the procedure would be undertaken under a general anaesthetic, he knew that there was a possibility that Caro had cancer, and that the cancer might be malignant. He also knew of the benefit of having a CT scan done, which was that more information would be provided by that procedure than by ultrasound, x-rays or MRI. He also knew that the procedure would cost more money.

One of the Plaintiff’s expert testified that anesthetic records were inadequate. The Court rejected that expert’s testimony and concluded that even if record keeping was inadequate, it did not cause or contribute to the dog’s decline in health:

[53] The fact that complete and adequate records may not have been kept during the procedures which Caro underwent is also not an adequate basis to suggest that the lack of any adequate records kept by Dr. Wooff or Guardian caused or contributed to unnecessary suffering on the part of Caro or his decline in health and eventual death. I do not accept the statement of Dr. Brock that if records do not exist the events did not happen. Rather, I choose to accept the evidence of Dr. Wilkie who testified that the primary objective was to minimize the time during which Caro was subjected to general anaesthesia and to focus, during the procedures, on attending to his care as opposed to logging every detail of the procedures. I also accept the evidence of Ms. George who said she took Caro’s vitals, gave him an IV, put him on the table, intubated him and observed the CT scan and biopsy processes. She also observed him being extubated and that he was properly swallowing after the procedures were concluded. Even if the record keeping failed to meet the standard of care required of Dr. Wooff or the clinic, the evidence does not establish on the balance of probabilities that any inadequate record keeping caused or contributed to Caro’s death.

The Plaintiffs asserted that they were ‘upsold’ in terms of treatment options. This was categorically rejected by the Court on the following basis:

[58] Given all the evidence, including the evidence of Dr. Garrett and Dr. Wilkie, I find that the position taken by Dr. MacCarthy that Dr. Wooff upsold the CT and biopsy procedures to be disingenuous. There is nothing to suggest that Dr. Wooff was profit motivated when she recommended that an ultrasound and x-rays not be undertaken but rather that a CT scan and possible biopsy be pursued. Granted, her income was based on a percentage of her gross billings which were issued through Guardian, nothing suggests that she made these recommendations in any way for personal financial gain. Income based on billings for tasks undertaken is of course common in the medical environment, as well as in the practice of law. There must be more than the simple fact that a professional’s compensation is based on procedures or services rendered to found or prove an allegation of conflict of interest. No evidence was led in this matter to suggest that any of the procedures recommended by Dr. Wooff were done solely or partly to earn more profit.

The Court concluded that the Veterinary Opthalmologist met the required standard of care in this case, and the Plaintiffs’ claim was dismissed.


Bintto v Wozny, 2018 ABPC 230

This matter involved a car sold on Kijiji that needed significant work. The mechanical problems were not disclosed to the new buyer. The Court found that the Sale of Goods Act did not apply to create any statutory implied warranty or condition as the sale was not “in the course of the seller’s business to supply.” The Consumer Protection Act was similarly not applicable as the “supplier” was not a “person, who in the course of the person’s business” providing goods and services to consumers.

The Court considered the Supreme Court of Canada decision Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 (CanLII), which found that the interpretation of contracts has evolved towards a practical, common sense approach and involved a consideration of the intent of the parties as oppose to looking at words on their own:

[50] In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII), the Supreme Court of Canada described the modern approach to contractual interpretation at paragraph 47:

“….the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding”….To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have immutable or absolute meaning.”

The Court considered the Bill of Sale (the contract), which included the terms “all known mechanical issues have been voluntarily disclosed at the time of sale” and “the vehicle is sold as is, where is, with no guarantees or warranties- written or implied.” The Court noted that case law on “as is where is” contractual provisions that pre-dated Sattva did not include the evolving approach discussed above, and therefore, were of limited assistance.

The Court concluded that the “as is where is” exclusion clause was not applicable because an examination of all the facts demonstrated that the disclosure clause was not complied with:

[77] Having regard to the definitions outlined in Paragraph 64, I am of the view that the engine head gasket issue was “mechanical” in that it related to “machines and engines and the way they work” and/or “the working parts of a machine”. I am further of the view that the engine head gasket was an “issue” – ie. a “concern or problem” at the time the Vehicle was sold to the Plaintiff. The evidence is clear that the Defendants knew about the concern or problem with the engine head gasket, and they did not tell the Plaintiff about the same at any point in their interactions with him. Based on that finding, I do not find the “as is where is” exclusion clause to be applicable to the circumstances established in the evidence as the disclosure clause was not complied with.

This placed the Defendants in breach of the contract. The Court awarded the following damages:

$3,988.81 – to repair the engine head gasket issue;
$556.50 – for repairs the Plaintiff tried to effect to the Vehicle;
$1,930.00 – for the Plaintiff’s loss of use of the Vehicle;

Total = $6,475.31

Loss of use was determined on the following basis:

[88] Mr. Bintto has not driven the Vehicle since February, 2018. Mr. Bintto and his family, therefore, have sustained damages as a result of loss of use of the same. Mr. Bintto drove 2,447 kms between October 24, 2017 and February 24, 2018 – a period of 124 days. This works out to an average of 19.7 km/day. There are 194 days between February 24, 2018 and September 10, 2018 (the date of Trial). If I use 19.7 km/day and multiply that by 194 days, Mr. Bintto has been deprived of using the Vehicle for approximately 3821.8 km. Using the government mileage rate of $0.505/km, and multiplying that by 3821.8 km, I arrive at $1,930.00 for the Plaintiff’s loss of use of the Vehicle resulting from the Defendants’ breach of Contract (see the Fees and Expenses for Witnesses and Interpreter Regulation, AR 123/1984).