Citation: Shea v. Whalen, 2008 NSSC 422
Date: 20081210
Docket: Hfx. No. 196352
Registry: Halifax
Between:
Shelly Shea
Respondent /Plaintiff
v.
Peter Whalen, John Whalen
Applicants/Defendants
Revised judgment: The original judgment has been corrected according to the erratum dated June 9, 2009. The text of the erratum is appended to this decision.
Judge: The Honourable Justice Arthur J. LeBlanc.
Heard: February 17, 2009, in Halifax, Nova Scotia
Last Written Submission: May 29, 2009
Counsel: Christa Brothers and Tyana Caplan,
for the applicant
Lester Jesudason and Moneesha Sinha,
for the respondent
By the Court:
[1] This is an application to amend a statement of defence under Rule 15.02(1) of the Civil Procedure Rules 1972. The proceeding, in which the plaintiff claims for damages arising from a motor vehicle accident that occurred in 2001, was initiated in 2003, with the defence being filed in 2004.
[2] In the 2004, the defendants’ counsel became aware that the plaintiff had been treated by Dr. Clive Creager for a period ending in 2003, for medical issues arising from the motor vehicle accident. In 2008, the defendants filed an amended statement of defence without court approval, which was struck by Hood J. on application by the plaintiff. The defendants subsequently filed an application to amend the statement of defence to plead that the plaintiff’s treatment by Dr. Creager caused or contributed to her injuries and damages. They also applied to add Dr. Creager as a third party. I denied that application by oral decision of December 10, 2008. I requested additional submissions on the appropriate manner in which to deal with the amendment application.
[3] This application is brought under Rule 15, which provides, in part:
Amendment of a document filed in a proceeding
15.01. A party may amend any document filed by him in a proceeding, other than an order, [...]
(c) at any time with the leave of the court.
Amendments by the court
15.02. (1) The court may grant an amendment under rule 15.01 at any time, in such manner, and on such terms as it thinks just.
(2) Notwithstanding the expiry of any relevant period of limitation, the court may allow an amendment under paragraph (1),
(a) to correct the name of a party, notwithstanding it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake was genuine and not misleading or such as to cause any reasonable doubt as to identity of the party intending to bring or oppose the proceeding;
(b) to alter the capacity in which a party brings or opposes a proceeding if the capacity, after the amendment is made, is one in which at the date of issue of the originating notice, third party notice, or the making of the counterclaim, the party might have brought or opposed the proceeding.
(3) The court may allow an amendment under paragraph (2) notwithstanding the effect of the amendment will be to add or substitute a new cause of action, if the new cause of action arises out of the same or substantially the same facts as the original cause of action.
[4] The issues raised by the proposed amendment are remoteness, failure to mitigate, deductibility and novus actus interviens. According to the applicant, these are not complicated or difficult issues on which to advance evidence, and are issues that are normally associated with personal injury claims.
[5] The Nova Scotia courts have applied to a liberal approach to applications for amendments to pleadings. In Baumhour v. Williams (1977), 22 N.S.R. (2d) 564, 1977 CarswellNS 309 (S.C.A.D.), Coffin J.A. said, at paras. 13-16:
In Tildesley v. Harper, 1878, 10 Chancery Division, 393, the Court had for consideration an application to amend the statement of defence. Bramwell, L.J. said at pp.396 & 397:
My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise.
In Clarapede & Co. v. Commercial Union Association, [1884] 32 W.R. 262, Brett, M.R. put the rule thus:
The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made.
These cases among others are quoted in the Manitoba case ‑ Udow v. Weidman, [1939] 1 D.L.R., where an application was made to McPherson, C.J.K.B. for an amendment of the statement of claim. It had been argued before the Chief Justice in that case that no amendment alleging fraud should be allowed. I quote from p.311 of the decision:
The general practice appears to me to be that leave to amend will be granted when the applicant is acting bona fide and no injury is done to the other party which cannot be compensated by costs or otherwise:....
In my opinion these authorities are pertinent to the application now before us. There is a very important issue to be tried and the respondents have not shown that they would be unduly prejudiced by the amendment. The respondents should be adequately compensated for any inconvenience by costs.
[6] In Global Petroleum Corp. v. Point Tupper Terminals Co. (1998), 170 N.S.R. (2d) 367, 1998 CarswellNS 405 (C.A.), Bateman J.A. stated, at para. 6:
The law regarding amendment of pleadings is not complicated: leave to amend will be granted unless the opponent to the application demonstrates that the applicant is acting in bad faith or that, should the amendment be allowed, the other party will suffer prejudice which cannot be compensated in costs....
[7] The respondent claims that it is too late in the proceeding to allow the amendment. The respondent says the applicants were aware of the involvement or potential involvement of Dr. Creager in the proceeding for some time, but took no steps to amend their Statement of Defence until 2008. Furthermore, the respondent claims that the amendment would cause her prejudice that cannot be compensated in costs. I will deal with that issue below.
[8] On the issue of delay, the applicant refers to Wall v. Horn Abbot Ltd. (2000), 183 N.S.R. (2d) 383, 2000 CarswellNS 106 (S.C.), where MacAdam J. allowed an amendment after a five-year delay. He said, at paras. 6-7:
A further factor considered by the courts, particularly in respect to the onus on the respective parties on an application to seek an amendment, is whether there has been undue delay in bringing the application. In this respect, Justice Davison in Gillis Construction v. Nova Scotia Power Corp. (1988), 86 N.S.R. (2d) 167 (N.S. T.D.), at para. 11, said:
In my opinion, where a party opposes an application for an order to amend a pleading, he must demonstrate that he would be seriously prejudiced or that an injustice would be done by the amendment. On the other hand, if there has been substantial delay in seeking an amendment which, by its nature, involves findings of fact and issues of credibility, the same principles apply as that which would apply to one who opposes an application to dismiss for want of prosecution. That is to say, the lengthy delay and the nature of the amendment raises the presumption of prejudice which must be rebutted by he who seeks the amendment.
At issue, therefore, is whether the plaintiff is acting in bad faith in seeking this amendment, whether there has been undue prejudice to the defendants which cannot be compensated in costs and whether there has been undue delay in bringing this application....
[9] Justice MacAdam’s decision to allow the amendment was affirmed by the Court of Appeal: 2000 NSCA 113.
[10] In Consolidated Foods Corp. of Canada v. Stacey (1986), 76 N.S.R. (2d) 182, 1986 CarswellNS 86 (S.C.A.D.), the Appeal Division reversed the trial judge’s decision not allow an amendment. Clarke C.J.N.S. said, at paras. 8-9:
In our opinion, the Judge in Chambers erred by exercising his discretion upon wrong principles. Assuming the application has not been made to further delay an action which has already taken too long to come to trial, the proposed amendment appears on its face to be advanced in good faith and one for which the respondent, if he is injured, can be compensated in costs or otherwise. Accordingly, we grant leave to appeal. We allow the appeal and order that the appellant be permitted to amend its defence by adding para. 9A as described in its application.
In view of the fact that the trial has already been delayed once by the action of the appellant and the lateness of this application has the potential of a further delay in trial, we order the respondent shall have his costs on this application both here and in the Court below in any event of the cause.
[11] In order to defeat an application for an amendment the opposing party must establish that there will he or she will suffer serious prejudice or that the amendment would visit serious injustice.
[12] Although the applicant suggests that there will be no need for additional discoveries or expert reports as a result of the amendment, it is my view that the respondent will be required to obtain additional medical reports and perhaps conduct discoveries, depending on whether the discovery procedures under the new Civil Procedure Rules apply. In any event, if the amendment is granted, the plaintiff will be required to prepare for two experts that may be called by the defendant at trial, and will likely find it necessary to retain her own expert. Clearly, there would be additional time required prior to trial to deal with this additional defence.
[13] There has been significant delay by the applicant in seeking this amendment. Nonetheless, it is my view that the application is not made in bad faith or for an ulterior motive. Although they have been in possession of two reports pointing to the potential involvement of Dr. Creager (since 2004 and 2006), the applicants’ position is that it only became clear that an amendment was necessary when the actuarial report appeared in early 2008.
[14] The respondent argues that the applicants’ delay will cause prejudice that cannot be remedied by an award of costs, due to the possibility that her ability to sue Dr. Creager will have been lost due to the passage of the limitation period, and that, in the event liability is not joint and several, she will not be able to collect all of her damages from the applicants.
[15] In Garth v. Halifax (Regional Municipality), 2006 NSCA 89, 2006 CarswellNS 316, Cromwell J.A. (as he then was), said, at para. 30:
The discretion to amend must, of course, be exercised judicially in order to do justice between the parties. Generally, amendments should be granted if they do not occasion prejudice which cannot be compensated in costs.... However, the expiry of the limitation period is a strong signal of the risk of injustice to the defendant if the amendment is granted. The court must consider all relevant matters which may include, but are not limited to, the length of the delay in asserting the claim and the reasons for it, how closely the new claim is connected to the claim originally pleaded and the nature and extent of any prejudice resulting from the claim being asserted now as opposed to before the limitation period expired.
[16] As to the length of delay, the accident occurred in March 2001. The applicant’s treatment by Dr. Creager started in September 2002 and concluded in late 2003 or early 2004. Therefore, the two-year limitation period for medical negligence has long expired: Limitation of Actions Act, R.S.N.S. 1989, c. 258, s. 2(1)(d). This is a strong signal of the risk of prejudice.
[17] Furthermore, the proposed amendment does not relate to the same or substantially the same facts as the existing cause of action, as contemplated by Rule 15.02(3), which permits the court to allow an amendment under Rule 15.02(2) “notwithstanding the effect of the amendment will be to add or substitute a new cause of action, if the new cause of action arises out of the same or substantially the same facts as the original cause of action.”
[18] The respondent notes that the issue of Dr. Creager’s treatment was evident to the applicant in 2004. In July 2004, Dr. Creager’s treatment had been the subject of review and comment by Dr. Hannigan at the request of the applicant. Furthermore, excerpts from the Bulletin of the Provincial Dental Board outlined the results of disciplinary proceedings against Dr. Creager, which were also provided to the applicant by Dr. Hannigan. There is no doubt that the applicants had information respecting Dr. Creager’s potential relevance to the action in 2004. The defence of novus actus interveniens was not mentioned to the respondent until 2008, however.
[19] As to the reason for the delay, I conclude that the applicants acted only upon becoming aware of the potential gravity of the claim, after receiving the actuarial report. That was their explanation, although not a rationalization, for the delay.
[20] According to the respondent, the amendment is not merely a technical defect or blunder, but an entirely new defence which does not relate to any issue currently in the pleadings. The effect of the amendment, then, is that she would be required to become involved in a dental malpractice suit, a radical transformation of the issues in the proceeding. Furthermore, the respondent says, that the trial judge will be required to deal with this issue without Dr. Creager’s presence, since he was not added as a third party to the proceeding. In opposing the application to add him as a third party, Dr. Creager’s counsel emphasized that adding a third party is a more onerous matter than amending a pleading, and encouraged the court to decide the third party application without awaiting argument on the amendment application.
[21] There may be good reason to think that the applicant will not be successful in attributing any fault to Dr. Creager. Nonetheless, I do not agree with the respondent’s view that without Dr. Creager being present as a party – either as a third party or defendant – the court will not likely make a finding that he bears some or all of the responsibility for the respondent’s injuries.
[22] I believe that Haley v. Brown, 1990 CarswellBC 1215 (B.C.C.A.), has no application here because the facts are completely and told the different. In that case the defendants sought to amend on the basis of evidence elicited at trial. In this case, the amendment is being sought prior to trial.
[23] I believe that an amendment is necessary in order for the trial judge to determine whether Dr. Creager bears any responsibility for the respodent’s injuries. Without the amendment being granted, I do not believe that it would be possible to pursue that issue at trial. Although it may be somewhat prejudicial for Dr. Creager to be found at fault when he is not a party to the action, his counsel insisted that that the action should proceed on that basis.
[24] I am mindful of the following comments of Cromwell J. A. in Garth, at para. 33:
A critical question in relation to any amendment is whether it will occasion any prejudice which cannot be compensated in costs. In the circumstances of this case, the issue of prejudice relates not only to the existing defendant but also ‑‑ in fact, primarily ‑‑ to the proposed defendant. Prejudice to the existing defendant, the municipality, was not the focus of the submissions in this case either before the chambers judge or in this Court. Counsel for the municipality conceded that there was no evidence that the proposed amendment caused it any prejudice that could not be compensated in costs. The more pertinent question is whether the addition of the proposed new defendant would prejudice its defence of the new claim. In my view, it is not appropriate in the circumstances of this case to answer that question without giving the proposed new defendant an opportunity to be heard.
[25] Here the amendment is not to add the defendant. In any event, the proposed defendant or third party did not want to be added. He was firm in his position that he would prefer a separate proceeding. At the same time, he acknowledged that the sought-after amendment would likely be granted and that the court would possibly have to make determinations of liability and apportionment without his presence.
[26] The respondent claims that she will suffer serious prejudice which cannot be compensated by a payment of costs. In the application to add a third party I made certain findings of prejudice which, in my view, still apply. Notwithstanding that, however, it is my view that the delay will be the form of prejudice from which Mrs. Shea will suffer. It is my view that this can be adequately compensated for in costs.
[27] The respondent refers to National Bank Financial Ltd. v. Potter, 2008 NSCA 92, 2008 CarswellNS 548 (C.A.), where the application judge, Warner J., denied an application to amend a Statement of Claim on the basis that the proposed amendments would leave a gap in certain material allegations, resulting in prejudice not compensable by costs because the amendments would likely render the defendants unable to present their case. He found that the amendments were advanced in bad faith. On appeal, Cromwell J.A. characterized the reason for the refusal to grant the amendment by Warner, J. as follows, at para. 33:
If the amendments were allowed, the other parties, after seven years of litigation, would be left completely in the dark as to what NBFL's position is on key aspects of its claims and defences. The judge concluded that this would cause undue prejudice to the other parties because the amendments would give rise to rounds of demands for particulars and responsive amendments which some of the parties simply could not afford to undertake. Simply put, the judge was of the view that NBFL's proposed amendments some seven years into the litigation would have the effect of sailing this litigation into the fog from which he feared it might never emerge without exhausting the resources of some of the litigants.
[28] Cromwell J.A. found “no reviewable error in that conclusion” (para. 34). It is my view that National Bank does not offer much assistance to the respondent. Warner J. was dealing with a case that was still at the pleading stage. I do not believe an award of costs entered the picture before him because that meant that many other parties to the proceedings would not necessarily have sufficient financial resources to continue their action and protect their interests in the litigation. I do not believe that the same situation exists here. Apart from possibly one or two additional discoveries and an additional expert report, which may amount in total to a delay of one year of the trial date, it is my view that such a delay is not comparable to that envisaged in National Bank.
[29] It appears to me that if the defendant had amended its statement of defence within the first 21 days of close of pleadings, the respondent would still have had to be involved in dealing with the allegation of dental malpractice, with no ability to resist the amendment.
[30] The delay issue having been dealt with, the remaining issue is whether allowing the amendment will lead to prejudice that cannot be compensated in costs.
[31] Although the respondent claims that it would be up to her to refute the allegations of negligence against Dr. Creager, I believe that the applicant, in advancing the theory that Dr. Creager’s treatment caused or contributed to the plaintiff’s injuries, will be required to do more than simply allege negligence. The applicant will have to prove on a balance of probabilities that Dr. Creager was negligent, and that his negligence caused or contributed to the respondent’s damages. The respondent may see the need to adduce evidence to counter this allegation, but the burden will be on the applicant on this point.
[32] The respondent suggests that the applicant has acted in bad faith in seeking the amendment. In the respondent’s view, bad faith requires the court find malice or high-handed behavior by the party seeking the amendment. Warner J. considered the meaning of “bad faith” in his decision in National Bank (see 265 N.S.R. (2d) 67, 2008 CarswellNS 224), which was affirmed in the decision discussed above. Warner J. said at paras. 130-135:
Is bad faith the absence of good faith, or does it require more? Is it dishonesty of belief or purpose? Or is it impossible to make a complete catalogue of types of bad faith (as stated in the American Restatement (Second) of Contracts, ¶ 125 [1979])?
In Phipson on Evidence, Fourteenth Edition, by M. N. Howard et al (1990; Sweet & Maxwell; London), Chapter 16, the chapter on proof of state of mind, Part 6 and Part 9 are about good and bad faith. The authors provide important guidance as to relevant considerations for assessing whether NBFL's application is made in bad faith when they write:
A party's good faith in doing an act may generally be inferred from any facts which would justify doing it. In such cases the state of his knowledge; or the advice, however erroneous, that he received; or the information, whether true or false, on which he acted, may often be relevant. So, to show the bona fides of a party's belief as to any matter, it is admissible to show the state of his knowledge, and that he had reasonable grounds of belief or that it was shared by the community or even by the individuals similarly situated to himself; while the absence of reasonable grounds of belief in the existence of a fact (e.g. means of knowing the opposite) is evidence of want of honest belief.
Gordon Hilliker, Q.C. has written texts on insurance law for several years. He suggests that the term "bad faith" may be a misnomer. In the context of contract law, he writes that it involves the breach of the duty of good faith and fair dealing, and forbids parties from concealing what they privately know, or, stated in the positive, impose a duty to disclose all material facts. It does not require malicious or high‑handed behaviour.
Seldom does a party declare his or her bad faith. The Court is entitled to draw inferences from the totality of the circumstances surrounding the application including:1) the state of knowledge of the applicant, 2) the advice, however erroneous, it received,and 3) the information, whether true or false, upon which it acted, in determining the good or bad faith of a party.
My assessment of bad faith encompasses consideration of the fact that NBFL's discontinuance of all claims against Mr. Clarke is a different process and has a different purpose, than its application to amend pleadings of material facts, so as, in this case, to substantially alter its theory of a stock manipulation conspiracy and how it was enacted.
In the context of this case, an important consideration is the absence of a bona fide explanation by NBFL of the reason for deleting the material fact allegations against Clarke.
[33] He added, at paras. 155-156:
The absence of an explanation for a proposed amendment is an unusual approach in any application. It was relied upon by Justice Legere‑Sers in Jachimowicz where she concluded that the amendment would open up a new inquiry not supported by facts, and, in light of the litigation history, would cause injury, costs and prejudice that could not be compensated in costs. Her analysis and conclusions are relevant to the analysis of this application.
Bad faith is not something that the offender admits to. It usually is proven from conduct and the absence of an explanation, and seldom from the words of the offender....
[34] While the respondent does not allege malice on the part of the applicant, she submits that the applicant has conducted this litigation since May 2008 in an unreasonable manner. In the totality of the circumstances, it is submitted, there are sufficient grounds to conclude that the amendment should be denied on the basis of bad faith. She submits that there is an absence of a bona fide explanation for the amendment, on the basis that on the third party application the applicant did not provide an explanation for failing to pursue Dr. Creager earlier, despite being expressly aware of the potential issue as a result of Dr. Hannigan’s report of July 2004, and the Dental Board bulletin.
[35] There was admittedly some delay in advancing the respondent’s claim due to the need to obtain additional expert evidence on future loss of income after it became evident that she would not be returning to long-term employment. In a report dated November 28, 2004, Dr. Plotsky expressed the strong belief that the respondent “will be left with some type of permanent disability that will affect her ability to function normally and also to enter the workforce.” There was also some delay arising from efforts to quantify her lost income, for which counsel sought an expert’s report. Although this report was received and provided to the applicant in early 2008, it was only in May 2008 that the applicant sought to plead novus actus interveniens.
[36] The respondent takes issue with the applicants’ characterization of her delay in requiring the prothonotary to issue a Notice to Appear. There had been an earlier notice to appear issued in May 2006, and the applicants’ counsel had requested that the applicant attend for an independent medical examination (IME) and the matter was taken off the appearance day docket. The IME was conducted by Dr. Bourque, who issued a report on October 25, 2006. Through 2007 and 2008, the parties explored settlement and attended mediation. Eventually, the parties entered into a Consent Order setting the schedule of pre-trial matters and scheduling a date for trial.
[37] The respondent’s counsel claims that the applicants did not disclose all the material facts that were in their hands. Only upon reviewing an affidavit filed by Ms. Stewart did it become evident that Dr. Hannigan had issued a report to Ms. Murray in July 2004. This information only came to light in 2008 on the day of the third party application. There was, however, a reference to this report in Dr. Hannigan’s report in the fall of 2004, where he stated that he had made comments about Dr. Creager in July 2004. The report of the Dental Board was only released on the eve of the application for the amendment, despite the fact that it had been referred to in Dr. Hannigan’s report of July 2004.
[38] Counsel for the respondent claims that the applicants have skirted around the question of when they first became aware of Dr. Creager’s involvement, and submits that they have failed to provide any credible explanation for their delay. Mr. Jesudason refers to Gillis Construction v. N.S. Power Corp. (1988), 86 N.S.R. (2d) 167, 1988 CarswellNS 200 (S.C.T.D.), where Davison, J. stated at para. 11:
... In my opinion, where a party opposes an application for an order to amend a pleading, he must demonstrate that he would be seriously prejudiced or that an injustice would be done by the amendment. On the other hand, if there has been substantial delay in seeking an amendment which, by its nature, involves findings of fact and issues of credibility, the same principles apply as that which would apply to one who opposes an application to dismiss for want of prosecution. That is to say, the lengthy delay and the nature of the amendment raises the presumption of prejudice which must be rebutted by he who seeks the amendment.
[39] Although the applicants claim that the respondent failed to produce Dr. Creager’s records, I am satisfied that she produced what she had at the time. I do not believe that she had access to records that were not produced.
[40] The respondent also contends that there have not been fair dealings between the parties since May 2008, due to unreasonable positions taken by the applicants, resulting in unnecessary hardship to the respondent. The applicants filed their amended defence without leave, forcing the respondent to apply to strike. The respondent alleges that the approach to this litigation by the applicants since May 2008 has been to place enormous pressure and demands on her, relying on the “deep pockets” available by way insurance coverage.
[41] Absent the position taken by Dr. Creager at the third party application I might very well agree that the amendment should not be granted. However, I am mindful of the words of counsel for Dr. Creager’s insurers, to the effect that he had no difficulty with the court granting leave to amend the defence. Counsel took the view that amending a Statement of Defence was easier to accomplish than adding a third party. Dr. Creager’s counsel argued that the applicants’ cause of action against Dr. Creager would be preserved by the Tortfeasors’ Act if they were concurrent tortfeasors. The limitation period would begin to run from the date of judgment or settlement. As such, Dr. Creager’s position was that it was not necessary for him to be a party to the action in order for the proceeding to be fairly litigated. Counsel added that amendments to pleadings were “routinely granted.”
[42] At the conclusion of the hearing, I asked counsel the applicants’ counsel to determine whether the applicants would undertake to meet any damage award in its entirety, and thereafter seek reimbursement from Dr. Creager to the extent of any liability that might be attributed to him. The applicants respond that it is not the task of the chambers judge to determine whether there would be joint and several liability, or indeed to be concerned about apportionment at all. The applicants’ position is that this issue should be left for trial, and the Chambers judge should not embark upon an analysis of whether they and Dr. Creager might be found to be joint, several or independent tortfeasors in the event of an apportionment of liability.
[43] Counsel has referred me to a number of cases suggesting that the issue of apportionment of liability is not for the Chambers Judge to decide. In Wind Power Inc. v. Saskatchewan Power Corp., [1998] 9 W.W.R. 389, 1998 CarswellSask 211 (Sask. Q.B.), on an application for security for costs, the plaintiff companies asserted that their claims were joint and that security should not be ordered from a non-resident plaintiff where there was another plaintiff in the jurisdiction. While concluding that the power to order security existed, Geatros J. commented that “[t]o analyse the nature of the claims in depth at this stage in order to determine whether they are joint or several would be to essentially make findings that are only for the trial judge” (para. 17).
[44] In Economy Foods & Hardware Ltd. v. Klassen, 2001 MBCA 16, 2001 CarswellMan 36, the Manitoba Court of Appeal held that the motions judge, in deciding a “stated case” question respecting the responsibility for various damages as between the defendant and the third party resulting from a fire in a shopping mall, correctly found that the defendants were responsible for the entirety of the damages caused by the fire, along with the third parties, subject to any rights of contribution between and among them. The parties’ respective degrees of responsibility for damages was a matter to be determined at trial.
[45] According to the respondent, the applicants’ view that they should only respond to the amount of the award against them is important to the issue of whether the amendment should be granted. The result of such a finding would be that if the trial judge concludes, for example, that the applicants and Dr. Creager are each 50 per cent at fault for the respondent’s losses, she will be required to start another action to seek recovery against Dr. Creager. This possibility raises an issue of limitation, since it has been more than two years since Dr. Creager provided dental services to the respondent. I recognize that there is no Nova Scotia authority on this point and that counsel for the defendants rely on decisions from outside this province however, it is a factor in that I have to take into account before I grant the amendment.
[46] There would have been no issue of limitation being a factor if the defendants had sought an amendment prior to the two-year limitation from the date of the last services provided. As has been made clear, the applicants were aware as early as 2004 of Dr. Creager’s treatment of the respondent, and of the Dental Board’s findings with respect to his qualification to perform similar treatment on other patients. Nevertheless, they waited until 2008 to attempt to add Dr. Creager as a third party or to amend the Statement of Defence to plead novus actus interveniens. In the event that the trial judge determines that liability is several, and that the applicants are therefore not liable for any portion attributable to Dr. Creager’s treatment, the applicants’ delay will therefore have caused significant prejudice to the respondent. As such, I am satisfied that the applicants should be required to indemnify the respondent for any damages attributable to Dr. Creager in the event it is determined that the applicants’ delay deprived the respondent of the ability to recover against Dr. Creager on account of the passing of the limitation period. This will be a condition of the amendment being granted.
CONCLUSION
[47] The prejudice, although significant, is not fatal to the application. Though there will be delay it is not a delay that is monumental. Experienced and competent trial counsel can readily prepare for trial even with this amendment granted. I am prepared to allow the amendment. However, in order for the amendment to take effect, the applicants will be required to pay certain costs to the respondent, as and when incurred by the plaintiff in dealing with the claim of novus actus interveniens and the other amendments. I set those costs as follows:
1. $3,000.00 for the preparation time for the discovery of Dr. Hannigan and Dr. Bourque;
2. $4,000.00 for the costs of conducting the discovery of Dr. Hannigan and Dr. Bourque;
3. $1,500.00 for preparation time for discovery of the plaintiff’s additional expert, if any;
4. $2000.00 for the cost of attending the discovery of the plaintiff’s dental expert.
[48] The defendant shall undertake to the court to pay the costs of the expert dental report prepared by the expert for the Plaintiff.
[49] I award $1,000.00 to the Respondent for the costs of this application.
J.
Date: 20081210
Docket: Hfx. No. 196352
IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Shea v. Whalen 2008 NSSC 422
BETWEEN:
Shelley Shea
PLAINTIFF
and
Peter Whalen, John Whalen
DEFENDANTS
ERRATUM
Revised judgment: The original judgment has been corrected according to this erratum dated June 9, 2009.
HEARD: At Halifax, Nova Scotia, before the Honourable Justice Arthur J. LeBlanc on February 17, 2009.
ORAL DECISION: December 10, 2008
WRITTEN DECISION: June 3, 2009
COUNSEL: Christa Brothers and Tyana Caplan,
for the Applicants/Defendants
Lester Jesudason and Moneesha Sinha,
for the Respondent/Plaintiff
Erratum:
Para. 2 of the decision indicated “I denied that application by oral decision of December 10, 2008, and written decision of March 11, 2009.” This sentence is replaced by the following:
“I denied that application by oral decision of December 10, 2008.”
J.