Raun v Shumborski, 2019 ABQB 823

On October 25, 2019 the Honourable Mr. Justice Douglas R Mah released his decision in Raun v Shumborksi, 2019 ABQB 823, in which Michael McVey, of Weir Bowen LLP, successfully defended a summary judgment application on behalf of the plaintiff, Ms. Raun. 

Ms. Raun commenced a medical malpractice action on April 8, 2011 relating to her husband’s death from renal cancer on July 12, 2007. At the time of his death, Mr. Raun had been under Dr. Shumborski’s care for 20 years. In September 2006 Dr. Shumborski ordered some laboratory investigations after Mr. Raun reported weight loss, fatigue, and night sweats. Ms. Raun recalled that her husband told her that some abnormalities were noted in the lab work, but could not recall exactly what they were. After a follow-up attendance with Dr. Shumborski Mr. Raun reported to his wife that he was relieved that he did not have any serious health concerns. He improved over the winter months, but began to experience a decline in health in April 2007. In May 2007 a lump was found in his abdomen and further testing resulted in a diagnosis of renal cancer. He subsequently passed away in July of 2007.

In February 2008 Ms. Raun’s mother-in-law advised Ms. Raun that she was making a complaint about Dr. Shumborski to the College of Physicians and Surgeons of Alberta. Ms. Raun signed authorizations so that the College could access her husband’s medical records. In the complaint Ms. Raun’s mother-in-law blamed Dr. Shumborski for Mr. Raun’s death. After conducting its investigation, the College concluded that there was a significant delay in the diagnosis of Mr. Raun’s cancer. The College was also critical of Dr. Shumborski’s care of Mr. Raun. These findings were conveyed to the family in August 2009.

Ms. Raun was asked during questioning in July 2013 whether she agreed with her mother-in-law’s statement that Dr. Shumborski was responsible for Mr. Raun’s death and she responded that she believed something could have been done in September and was overlooked. She also agreed that as of February 2008 she questioned Dr. Shumborski’s competence and felt something else probably could have been done in September 2006 to diagnose the cancer. However, at her questioning on affidavit in November 2018 she deposed that she was not involved in the preparation of the complaint and she did not agree 100% with its contents. She stated she wondered if there was something that Dr. Shumborski should have done, but when asked whether at the time the complaint was made she agreed that Dr. Shumborski’s conduct may have contributed to her husband’s death she stated: “I didn’t have any idea”. She also deposed that she was “shocked” by the College’s findings.

The Defendant, Dr. Shumborski, argued that Ms. Raun’s claim ought to be summarily dismissed because the applicable two year limitation period had expired by the time Ms. Raun filed her claim. Dr. Shumborski’s application was dismissed at first instance by the Master and Dr. Shumborski appealed that decision to the Court of Queen’s Bench. The main issue on appeal was when the existence of a claim was discovered, or ought to have been discovered, by Ms. Raun so as to trigger the running of the limitation period. Dr. Shumborski contended that Ms. Raun had the requisite knowledge to commence a claim by February 2008 at the latest. Ms. Raun argued that she did not have the requisite knowledge until August 2009 when she learned of the outcome of the complaint made to the College of Physicians and Surgeons about Dr. Shumborski.

Justice Mah began his legal analysis by summarizing the law pertaining to summary judgment in Alberta. He indicated that as per The Supreme Court of Canada’s decision in Hryniak v Mauldin, 2014 SCC 7, summary judgment is appropriate when three criteria are met:

• the record allows the Court to make the necessary fact findings; 
• the record allows the Court to apply the law to the facts; and
• summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result. 

There has been some dispute in Alberta as to how the test for summary judgment is to be applied post Hyrniak v Mauldin. Recently, a five judge panel of the Court of Appeal was struck to settle this dispute in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49, and its companion appeal Brookfield Residential (Alberta) LP v Imperial Oil Ltd, 2018 ABCA 35. In Raun v Shumborski, Justice Mah extracted the following applicable principles from the Court of Appeal’s decision in Weir-Jones:

• In a summary judgment application, the question is whether the claim can be fairly resolved summarily or whether there is a genuine issue requiring trial based on the record, facts, or the law.
• The party applying for summary judgment has the onus to show that there is either “no merit” or “no defence” to the claim based upon facts proven to the balance of probabilities standard.
• Once this burden is met, to resist the summary judgment application, the responding party must demonstrate a genuine issue requiring trial from the record. 
• The Court must be confident that the record is sufficient such that judicial discretion should be exercised to grant summary judgment. 

Justice Mah identified the key issue before him as whether Dr. Shumborski, as the party moving for summary judgment, had established on a balance of probabilities that Ms. Raun had the requisite knowledge as of February 2008 to trigger the running of the limitations period. This would mean that there was no genuine issue requiring trial as under s 3(1)(a) of Alberta’s Limitations Act, the defendant has a complete defence where the plaintiff files a claim more than two years from the date on which the plaintiff’s limitation period was triggered.

Justice Mah distilled the following principles concerning limitation periods and discoverability in Alberta:

• A plaintiff’s limitation period is triggered on the date that the plaintiff knew or ought to have known that an injury occurred, that such injury was attributable to the defendant’s conduct and, that such an injury, assuming liability, warrants commencing a proceeding.
• The plaintiff must have “reasonable awareness” of each component of the three part test. This degree of knowledge is more than mere suspicion but less than perfect knowledge.
• In a medical negligence case, a medical opinion may be necessary for the plaintiff to acquire the requisite knowledge, depending on the circumstances. 
• The plaintiff must exercise reasonable diligence in investigating a potential claim.

Justice Mah noted that in the medical malpractice context, there is a distinction to be made between cases in which the plaintiff should intuitively know that his or her injury was attributable to the conduct of the defendant because the injury manifests immediately following a medical procedure and cases in which an injury occurs but the plaintiff cannot know that it resulted from a medical procedure or from a delay in diagnosis without an expert opinion. 

Ms. Raun knew she had suffered an injury at the time of her husband’s death. She also knew that her husband had been under Dr. Shumborski’s care and that Dr. Shumborski had not diagnosed or treated him for renal cancer. Dr. Shumborski argued that this was enough to trigger the limitation period. Justice Mah rejected that argument holding that, in the absence of the report of the College of Physicians and Surgeons, Ms. Raun had no information to suggest that Dr. Shumborski’s delay in diagnosis contributed to her husband’s death beyond the fact that her husband had passed away and that he had been Dr. Shumborski’s patient. Justice Mah held at para 61: “If those, as material facts, are sufficient to commence a claim for medical negligence, then the family members of every patient who dies while under a doctor’s care should commence an action right after the death. Clearly, this is not a tenable positon for plaintiffs, defendants or the Court system.” 

Dr. Shumborski argued that, at least by the time the College complaint was made in February 2008, Ms. Raun had sufficient knowledge that her husband’s death was attributable to Dr. Shumborski’s conduct. Justice Mah held that the record does not establish that Ms. Raun had sufficient knowledge of such attribution. Specifically:

• Ms. Raun “wondered” whether Dr. Shumborski should have done something more, but she did not know whether Dr. Shumborski acted inappropriately; 
• The fact that Mr. Raun improved over the winter months of late 2006 and early 2007 could have been confounding in terms of attribution;
• By signing the authorizations to enable her mother-in-law to make a complaint to the College Ms. Raun was accommodating an angry and grieving mother;
• Ms. Raun did not agree 100% with the content of the complaint and felt her mother-in-law engaged in overstatements;
• When asked whether she believed at the time the complaint was made whether Dr. Shumborski’s conduct contributed to her husband’s death she stated: “I didn’t have any idea”; and
• She reported that she was “shocked” by the College’s findings. 

Justice Mah concluded that it is more than arguable that while Ms. Raun may have wondered if her husband’s death was attributable to Dr. Shumborski’s conduct, she did not have knowledge of that fact until she received the College’s findings. He found that Ms. Raun’s degree of knowledge regarding attribution in February 2008 is an open question subject to a finding of credibility and that there is a genuine issue requiring trial concerning when Ms. Raun attained sufficient knowledge to trigger the limitation period.  

By Iman Jomha