Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Edited by Steven Graham
Van Grimsen v Kortbeek, 2022 ABQB 138
Appeal from Master | Summary Dismissal | Standard of Care | Medical Malpractise
Berry Homes Ltd. v Shafir, 2022 ABQB 140
Standard of Care | Negligence of a Lawyer
Van Grimsen v Kortbeek, 2022 ABQB 138
This matter is the appeal of a Master’s decision dismissing the Plaintiffs’ claim against various physicians for medical malpractise. Where the Plaintiffs alleged that the Defendants were negligent and breached their standard of care, the Master found, on the basis of the expert evidence presented before him, that the standard of care was met or exceeded, and as such there was no genuine issue to be tried.
On appeal, the Plaintiffs submitted additional evidence, and argued that the Master’s decision made errors of law and fact.
On the matter of submitting new evidence on appeal, the Chambers Justice remarked that rule 6.14(3) permits new evidence to be admitted provided it is relevant and material. However, the Court noted that some of the new evidence had merely been appended to the Plaintiff’s written submissions and not included in an affidavit or other proper evidentiary format, and was therefore inadmissible:
[31] However, the two medical reports, the training manuals for 2005, 2008, 2009, the Operative Report, and the fluid culture report are not evidence before the Court. Their authors cannot be cross-examined, their reliability and provenance cannot be assessed, and they are pure hearsay. As noted by Graesser J in County of Vulcan v Genesis Reciprocal Insurance Exchange, 2020 ABQB 93, at para 77:
… neither party may rely on hearsay evidence on the substantive issues to be determined on a summary judgment application, unless the hearsay can be brought within the exceptions described in Khelawon [necessity and reliability] or other recognized exceptions to the hearsay rule.
[32] While hearsay may be admissible in an affidavit sworn on information and belief, the affidavit must cite the source of the information. If that affidavit is sworn in support of an application that may dispose of all or part of the claim, it must be sworn on personal information only (r 13.18). See also Clark Builders and Stantec Consulting Ltd v GO Community Centre, 2019 ABQB 706 at para 40; Court v Debaie, 2012 ABQB 640, at paras 33 and 34; Murphy v Cahill, 2012 ABQB 793, at para 26; DD v Calgary Counselling Centre, 2017 ABQB 95, at para 43.
With respect to expert opinions presented by the Plaintiffs on appeal, the Chambers Justice noted that neither of them were in affidavit form. While the Rules of Court do not require expert reports to be in affidavit form, only comply with Form 25, there is authority that expert evidence must be in a form that permits cross-examination of the expert. The following principles were cited:
[41] Expert evidence must be in in a form that that permits cross-examination of the expert: DH v Woodson, 2020 ABQB 367 at para 79. The Court in DH refused to consider the expert report of a doctor that was attached as an exhibit to another doctor’s affidavit. As such, that expert would not be available for cross-examination. On the other hand, in Hache v West Edmonton Mall Property Inc., 2018 ABQB 461 at para 10, counsel for the defendant objected to an expert report that was not filed as part of an affidavit. Burns J agreed with Plaintiff’s counsel that the report was filed in Form 25 and as such the defendants could have sought to question the expert on the report under r 5.37. Because the Plaintiffs did not apply to question the expert, Burns J concluded she would rely on the report.
The Court then considered whether the Defendants could rely upon expert opinions of the Plaintiff that did not meet the requirements of Form 25 or were not relied upon by the Plaintiff. The Court concluded that such opinions, if not relied upon by the Plaintiffs, could not be relied upon by the Defendants:
[44] I conclude that the Respondents cannot rely on Dr. Esmail’s IME: it is hearsay, it did not meet the requirements of Form 25, and the Appellants did not rely on it.
[45] However, even though they did not file Dr. Stiver’s report with the Court, the Appellants relied on a portion of his report in their submissions (p 11 of submissions). I conclude that it would only be fair to permit the Respondents to respond to these submissions and rely on Dr. Stiver’s expert opinion, but only as it is necessary to provide context to the portion relied on by the Appellants.
The Chambers Justice then considered the merits of the appeal. One of the grounds of appeal was that the Master failed to consider the question of informed consent, having come to the conclusion that consent was not properly plead. The Court distinguished the authority from the Supreme Court’s decision in Saadati where pleadings were found to be sufficient if they alleged “some form of such injury”. In this case, because failing to seek informed consent is a distinct cause of action, it could not be inferred from a generic pleading, and needed to be distinctly set out:
[66] In my view, this is different than the situation here. In Saadati, the question was whether a specific form of injury was pleaded within the negligence claim, and the general language of the pleadings was sufficient to give the Defendants notice that mental injury was one of the heads of damages.
[67] However, breach of the duty to provide informed consent is a separate cause of action, and has its own elements that must be pleaded and proved, separate from medical negligence: Reibl v Hughes, 1980 CanLII 23 (SCC), [1980] 2 SCR 880 at para 4; Arndt v Smith, 1997 CanLII 360 (SCC), [1997] 2 SCR 539 at para 17; McAvena v Byrne, 2013 ABQB 306 at para 27; Semeniuk v Cox, 2000 ABQB 18 at para 12 outlined the three elements to the doctrine of informed consent:
(a)The physician must discharge his or her duty to outline the basic nature and character of the operation to be …This also requires a discussion of alternate therapies and treatments.
(b)The complication that occurs must be one which is found in law to be a “material risk” and therefore one which should have been disclosed.
(c)Even if the physician fails to obtain an informed consent, liability will only attach where it can be established that a reasonable person in the patient’s position would have decided to forego the surgical procedure had she been properly informed.
[68] None of these elements were pleaded. In particular, the pleadings do not provide, and the evidence does not disclose, that Mr. Van Grinsven would not have undergone the surgeries if he had known of the alleged undisclosed risks. He stated this in argument, which is insufficient as he could not be cross-examined on that statement.
The Court concluded that informed consent was not raised on the pleadings, and even if it had been, the Plaintiffs failed to establish that there was no informed consent or causation.
On the question of negligence, the Court set out the critical principles regarding the standard of care of a physician:
[73] To prove there was a breach of the standard of care, the Plaintiffs must show that there was a failure to perform or administer treatment in accordance with the expertise of “…a normal, prudent practitioner of the same experience and standing” at the time the treatment is provided: Waters v Wong, 2019 ABQB 51 at para 55 (citations omitted).
[74] The standard of care is not one of perfection, nor is it determined based on hindsight with knowledge of the outcome: Waters at para 56.
[75] Moreover, the standard of care is not breached if the “…physician has more than one reasonable course of action, and elects to follow one of them”: Peppler Estate v Lee, 2019 ABQB 144 at para 180 (citations omitted); aff’d 2020 ABCA 282; leave to appeal refused [2020] SCCA No 295.
[76] The law recognizes that the honest and intelligent exercise of judgment satisfies the professional obligation of a doctor. Moreover, the exercise of “reasonable care, skill and judgment in coming to a diagnosis”, even if mistaken, will not lead to negligence: Dehekker v Anderson-Penno, 2014 ABQB 95 at paras 164-165 (citations omitted).
The Chambers Justice also rejected the Plaintiffs’ argument that expert opinion as to the standard of care was unnecessary. The evidence available to the Court, from expert opinions presented by the Defendants, was that the Defendant physician met or exceeded the standard of care. Even the unsworn opinions which the Plaintiffs sought to introduce did not comment on the standard of care. Accordingly, the Court concluded there was no merit to the claim that the standard of care had been breached, and as such no need for a trial of that issue.
Given the Court’s conclusion that there was no breach of the standard of care, causation did not need to be addressed. However, for the sake of completion, the Court did provide an analysis. The critical element of proof for the Plaintiff is the ‘but-for’ test, and the Court found that it had not been satisfied by the Plaintiffs:
[87] There was nothing in the facts to suggest the doctors caused the injury complained of. Causation of the infection is likely unprovable in this case. Master Schlosser stated at para 11 of his decision: “The infectious agent(s) have been identified. Expert opinion, to the extent that it addresses this question, is consistent on this point”. However, after reviewing the evidence on the mechanism by which the infectious agent may have been introduced into the wound, he concluded at para 16: “Although the bacterial agents involved are commonly found on the skin, all three experts agree that the specific reason for the infection usually cannot be identified; making causation essentially unprovable”.
[88] Even if, as the Plaintiffs argue and Master Schlosser noted at para 15 of his Decision, there are several possible means by which the infection could have entered the body that point to the negligence of the doctors (i.e., 4. Contamination of the surgical wound from skin flora during surgery from a break in sterile technique; 7. Contamination of surgical instruments; 8. Contamination of the prosthetic hardware after the device is unwrapped in the operating room), there is no evidence in this case that those possibilities could be proved on a balance of probabilities.
Ultimately, the Chambers Justice found summary dismissal to be appropriate, considering no evidence from the Plaintiffs as to the standard of care was adduced. Since the Defendants met the primary burden of establishing there was no merit to the Plaintiffs’ case, and the Plaintiffs were unable to then show on a balance of probabilities that the negligence of the Defendants caused the alleged injuries, there was no merit to the claim, and it could be summarily dismissed.
Berry Homes Ltd. v Shafir, 2022 ABQB 140
The Plaintiff commenced an action alleging negligence against the Defendant, who acted as the Plaintiff’s counsel for a real estate transaction. The Defendant counsel was retained by the Plaintiff not long before the transaction was to conclude and had no hand in the drafting of the purchase and sale agreement to which the Plaintiff had already agreed. An application was brought by the Plaintiff for a summary determination on liability, while the Defendant cross-applied to dismiss the claim.
The Court summarized the critical details of the transaction, and what the Defendant faced when his involvement in the transaction started:
[22] It is also useful to briefly review the circumstances that Shafir faced, and the actions taken when this transaction was brought to him. The subsequent non-refundable payment of $932,000 was to be made in a matter of days under an agreement fully executed and negotiated without his involvement. He sought clarification from the Seller’s counsel of his understanding of, what all agree, was a poorly drafted agreement. A caveat was submitted for registration to protect Berry Home’s interest. Additional time was requested to allow for confirmation of registration before payment of the $932,000 which was effectively denied. An undertaking was obtained from the Seller’s counsel to discharge various prior registrations, and also to receive a discharge of a Development Agreement with the Town of Spruce Grove from 2009. The request for an undertaking to discharge the prior mortgage was met with the advice that an undertaking in that regard would not be forthcoming until final closing of the sale in July 2014. The final addendum (Notice) of November 13, 2013, provided for a closing by way of an Agreement for Sale. The Notice also provided for the financing for one year from the completion of roadways and so on, “on or before July 31, 2014”.
The parties agreed that the agreement in issue was poorly drafted. The Master found that there was substantial uncertainty in terms of what the agreement contemplated, and then what were the necessary steps for the Defendant to have taken. Various questions as to the standard of care were raised by the Master that could not be answered on the evidence before him. The Master remarked that expert evidence is generally required to establish the standard of care to which a lawyer should be held.
[24] […] The ultimate issue is whether the record is sufficient to make a fair and just determination. For purposes of the Summary Dismissal application there is a direct conflict in the evidence regarding the first mortgage. Not every conflict will preclude a summary determination, but I have already expressed my view on the evidence here having created uncertainty. But even if I were to accept the Defendant’s evidence, I also have reservations as to whether his actions were sufficient to discharge his duty of care to the Plaintiff based on my interpretation of the PSA. Could and should more have been done? Was there sufficient inquiry about the first mortgage? Should the preparation of an Agreement for Sale been raised with the Seller’s counsel? Could Shafir legitimately delay payment of the $932,000 by Berry Homes so it could be prepared and gather additional relevant information without jeopardizing a deal that his client wanted?
[25] The Plaintiff is no doubt of the view that the answers to my questions are clear, and that negligence is obvious. The difficulty is determining the standard of care that should be expected in light of the circumstances here. Expert evidence is generally required to establish the standard of care to which a lawyer is to be held. Although not an absolute rule, there is a strong presumption that expert evidence is required. There are no obvious facts here that would obviate the need. (See Kostic v Thom, 2021 ABCA 406 at para 15). And despite my having arrived at an interpretation of the PSA, it is entirely conceivable given some of the unconventional language in the drafting and this context that experts in assessing the standard opine to markedly different or nuanced interpretation(s) for the Court’s consideration.
The Master therefore concluded that neither party had met the evidentiary threshold for the summary relief they each sought, and dismissed both applications.