Frank v. Alpert et al., [1971] SCR 637

Supreme Court of Canada

Frank v. Alpert et al., [1971] S.C.R. 637

Date: 1970-12-21

Anne Frank (Plaintiff) Appellant;

and

Pearl Alpert, David Ferdman, Joseph Halprin and Rivan Kenneth Halprin as Executors under the Last Will and Testament of Harry Ferdman, Deceased, and Ethel Ferdman (Defendants) Respondents;

and

William Kleiman, trading as Kleiman’s Electric Service, and Walter Dziadus (Third Parties) Respondents.

1970: October 19, 20; 1970: December 21.

Present: Martland, Judson, Hall, Spence and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Practice—Action for personal injuries—Substantial delay in setting action down for trial—Motion to dismiss—Injuries such that physician unable for long period to conclude, either affirmatively or negatively, whether plaintiff’s progressive disability flowed from injury—Delay justified.

The appellant took action against the respondents on June 15, 1966, alleging that on April 10, 1965, being a tenant in premises of the respondents and while using the laundry facilities provided by the respondents for her and the other tenants of the building, she was severely scalded as a result of the faulty equipment provided by the respondents. The

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defence was delivered on June 27, 1966, and third party proceedings were subsequently initiated by the respondents. The appellant was in a position by October 1967 to set the action down for trial. It was not set down for trial and, according to the record, was dormant until February 20, 1969, when the respondents moved before the referee for an order dismissing the appellant’s action for want of prosecution. The referee made an order dismissing the action on March 7, 1969. The appellant then moved before a judge in chambers on March 20, 1969, to vacate the order of the referee. The chambers judge dismissed the application on September 15, 1969. The appellant then appealed to the Court of Appeal and that Court affirmed the order dismissing the action on November 10, 1969. Leave to appeal to this Court was granted on February 16, 1970.

Held: The appeal should be allowed and the order dismissing the action for want of prosecution set aside.

There was substantial delay here, but in the circumstances it was not of such a nature as to bar the appellant from having her claim heard on the merits. Her injuries were such that her physician was unable for a long period to conclude, either affirmatively or negatively, whether the disability from which she suffered and which was progressive was caused by or flowed from the injury. If her solicitor had gone to trial with the inconclusive medical evidence then available, the Court trying the compensation issue would have been handicapped in arriving at the amount, if any, appellant might have been entitled to.

Ross v. Crown Fuel Co. Ltd. et al. (1962), 41 W.W.R. 65; Tucker v. Moerman, [1970] 2 O.R. 775, referred to.

APPEAL, with leave, from a judgment of the Court of Appeal for Manitoba[1], affirming an order of Bastin J. dismissing an application to vacate an order of the referee dismissing an action for want of prosecution. Appeal allowed.

P.S. Morse, Q.C., for the plaintiff, appellant.

C.R. Huband, for the defendants, respondents.

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The jugment of the Court was delivered by

HALL J.—This is an action in which the appellant alleges that on April 10, 1965, being a tenant in premises of the respondents and while using the laundry facilities provided by the respondents for her and the other tenants of the building, she was severely scalded as a result of the faulty equipment provided by the respondents. She took action against the respondents on June 15, 1966. The defence was delivered on June 27, 1966, and third party proceedings were initiated by the respondents against the third party Kleiman in June of 1966 and against the third party Dziadus on May 2, 1967. The appellant was in a position by October 1967 to set the action down for trial. It was not set down for trial and, according to the record, was dormant until February 20, 1969, when the respondents moved before the referee for an order dismissing the appellant’s action for want of prosecution under Manitoba Rule of Court No. 284. The learned referee made an order dismissing the action on March 7, 1969. The appellant then moved before Bastin J. on March 20, 1969, to vacate the order of the referee. Bastin J. dismissed the application on September 15, 1969. The appellant then appealed to the Court of Appeal and that Court affirmed the order dismissing the action on November 10, 1969[2]. Leave to appeal to this Court was granted on February 16, 1970.

On the application which the appellant made to Bastin J. to vacate the order of the referee there was filed an affidavit of Yude Maurice Henteleff, the solicitor for the plantiff, in which he testified that the delay from October 1967 to February 1969 was due to the inability of appellant’s physician, Dr. Lander, to assess the increasing pain in appellant’s neck and back and of the necessity of having appellant referred to Dr. W. Welply, an orthopaedic surgeon. He had not been able to set the action down for trial as the medical evidence which he then had to rely on was not sufficiently certain that a proper appraisal could be made for the Court of her injuries and the result thereof in totality, and it

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was not until January 28, 1969, that he was in a position to proceed with the action. There was also filed an affidavit of appellant’s physician, Dr. J.J. Lander, which gave in detail the history of her condition from April 10, 1965, until January 28, 1969. This affidavit shows that appellant was under constant medical care throughout the period, and the affidavit contained this paragraph:

23. THAT from April 20th, 1965, to date, Mrs. Frank’s physical condition resulting from said injuries has been continually deteriorating.

In dismissing the appeal to vacate the order of the referee, Bastin J. concluded by saying:

It appears from these quotations that the plaintiff’s injuries at all stages defied precise determination and prognosis, so the delay has not and could not yield definite answers to the medical questions involved. I hold that this is not a case where the plaintiff was justified in delaying the trial in order to obtain positive evidence in support of her case.

The order made by Bastin J. and upheld by the Court of Appeal is, in its nature, a discretionary one, and the ordinary practice in this Court is not to interfere with discretionary orders of this kind having to do with practice and procedure in a province. However, this appears to me to be a special case in which the interests of justice require the Court to review what was done in the Courts below.

There was substantial delay here, but in the circumstances it was not of such a nature as to bar the appellant from having her claim heard on the merits. She was severely injured by the scalding water. Her injuries were such that her physician was unable for a long period to conclude, either affirmatively or negatively, whether the disability from which she suffers and which is progressive was caused by or flowed from the injury. A party claiming compensation for injury against an alleged tortfeasor has, as has been said, but one day in court. The claim, if valid, cannot be assessed piecemeal or at successive stages and,

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accordingly, the solicitors for such a claimant are under a duty to be as certain as reasonable inquiries can establish that when the claim does come to be dealt with by the Court that the long term consequences, if any, of the injury will be put before the Court by medical evidence which, in some circumstances, may not become immediately available but must await developments. This must mean, in some cases, a reasonable lapse of time when time alone will tell whether the disability claimed flows from the alleged injury or not.

This, in my view, is one of those cases. Bastin J. took the position that the decision of the Manitoba Court of Appeal in Ross v. Crown Fuel Co. Ltd. et al.[3] accepted the inability of the attending physicians in that case to promptly determine the extent and prognosis of the plaintiffs’ injuries as an adequate explanation and justification for the delay in setting that action down for trial only if the medical investigation would prove capable of yielding definite answers, and because Dr. Lander in the instant case had not been able to come up with a precise determination and prognosis and as the delay had not yielded definite answers to the medical questions involved, this was not a case where the plaintiff was justified in delaying trial in order to obtain positive evidence in support of her claim.

I am unable to agree with this view. If the solicitor had gone to trial with the inconclusive medical evidence then available, the Court trying the compensation issue would have been handicapped in arriving at the amount, if any, appellant might have been entitled to.

I agree that actions for personal injury should be dealt with expeditiously and that many such actions are delayed inordinately, but there are some actions and claims which, of their nature, cannot be proceeded with as quickly as most should be. A speedy disposition of a claim or a quick settlement may, in some instances, be prejudicial to an injured party. There are cases on record where, after a settlement entered into in good faith on the basis of the then known

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medical appreciation and prognosis, it has been found that injuries thought to be temporary or slight turn out to be serious and permanent. Settlements so made in such cases are binding even if the amount of compensation received is much less than would have been justified if the eventual disability had been foreseen and provided for: (Tucker v. Moerman[4]). Solicitors for claimants ought not to be faulted if, in good faith, they wait until the disability situation becomes reasonably assessable.

I would, accordingly, allow the appeal and set aside the order dismissing the action for want of prosecution with costs here, in the Court of Appeal and before Bastin J. The respondents are entitled to the costs of the application before the referee.

Appeal allowed with costs.

Solicitors for the plaintiff, appellant: Aikins, MacAulay & Thorvaldson, Winnipeg.

Solicitors for the defendants, respondents: Richardson & Company, Winnipeg.

Solicitors for the third party, respondent, William Kleiman: Bowman & Crawford, Winnipeg.