



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Birrell 
          v. Providence Health Care Society,







2008 
          BCCA 14



Date: 20080115

Docket: CA035140

Between:

Margaret Birrell

Respondent

(
Plaintiff
)

And

Providence 
    Health Care Society dba Providence Health

Care 
    dba St. Pauls Hospital and dba The B.C. Ear Bank,  Vancouver Coastal Health 
    Authority dba Vancouver General Hospital dba Vancouver Hospital and dba The 
    B.C. Ear Bank,  The University of British Columbia dba The B.C. Ear Bank, 
    and John Doe

Appellants

(
Defendants
)




Before:


The 
          Honourable Madam Justice Kirkpatrick




(In 
          Chambers)








C.L. 
          Woods, Q.C.

S. 
          Grubb


Counsel for the Appellant, Providence Health Care Society




J. 
          Dives


Counsel for the Appellant, Vancouver Coastal Health 
          Authority




S. 
          Tucker

N. 
          Hartigan


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




14 December 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




15 January 2008



Reasons 
    for Judgment of the Honourable Madam Justice Kirkpatrick:

[1]

Providence Health Care Society ("Providence") and Vancouver 
    Coastal Health Authority ("Coastal Health"), (collectively the "applicants"), 
    apply for leave to appeal following the decision of Madam Justice Prowse on 
    2 November 2007 that leave is required in this case.

[2]

The applicants apply for leave to appeal the 11 May 2007 order of the 
    Supreme Court.  The order was made by the case management judge in an action 
    commenced under the
Class Proceedings Act
, R.S.B.C. 1996, c. 
    50.  The judge ordered that two plaintiffs, Thomas Little and Robert Corfield, 
    be added as plaintiffs to the action; that Margaret Birrell be removed as 
    a party to the action; that the applications of Providence and Vancouver Coastal 
    for dismissal of the action pursuant to Rule 18(A) be dismissed; and orders 
    as to costs.

[3]

The underlying action is a claim in negligence.  The plaintiffs seek 
    to have the proceeding certified as a class proceeding.  The claim arises 
    out of the operation of the British Columbia Ear Bank from 1974 until 2002.  
    The B.C. Ear Bank was operated under the auspices of the division of otolaryngology, 
    Department of Medicine, at the University of British Columbia.  The allegations 
    of negligence relate to the B.C. Ear Bank's donor screening, its collection 
    and distribution of ear bone and tissue from donor cadavers, and its use of 
    such products during surgery for the hearing impaired.

[4]

On 19 February 2003, a public health advisory regarding the operations 
    of the Ear Bank was issued.  Recipients of Ear Bank products were advised 
    by letter from their treating physicians about documentation concerns with 
    the Ear Bank.  It was suggested that recipients undergo testing for certain 
    diseases, including hepatitis A, hepatitis B and HIV.  The letters advised 
    that the risk of infection was extremely low and that no person had ever been 
    infected as a result of receiving a product from the B.C. Ear Bank.

[5]

Margaret Birrell underwent an operation at St. Paul's hospital on 6 
    July 1994 to repair a left tympanic membrane perforation.  In January 2005, 
    she received a letter from her physician informing her of Health Canada's 
    advisory regarding Ear Bank operations, indicating that she may have received 
    Ear Bank products, and recommending that she undergo certain testing.  As 
    it turns out, this letter was in error.  Following the commencement of Ms. 
    Birrell's action on 18 February 2005, it was discovered that she did not receive 
    any products from the B.C. Ear Bank.  It was conceded at the hearing before 
    the case management judge that Ms. Birrell had no cause of action against 
    any of the defendants because no duty of care was owed to her by them.  Nevertheless, 
    Ms. Birrell took the position that she could continue to be a representative 
    plaintiff even if she was not a class member by operation of s. 2(4) 
    of the
Class Proceedings Act
, which provides that a representative 
    plaintiff need not necessarily be a member of the class if this will serve 
    to avoid substantial injustice to the class.

[6]

Ms. Birrell applied on 16 August 2006 to add two new representative 
    plaintiffs, Thomas Little and Robert Corfield.  On 27 September 2006, the 
    defendants filed an application to dismiss the action pursuant to Rule 18(A) 
    of the
Rules of Court
, B.C. Reg. 221/90.  The proposed new plaintiffs 
    allegedly received ear bone transplants with products supplied by the Ear 
    Bank on, in Mr. Little's case, 19 April 1996, and in Robert Corfield's case, 
    in 1991.   Mr. Little received the letter notifying him of the documentation 
    problems at the Ear Bank in March 2005.  Mr. Corfield received a similar letter 
    in January 2006.

[7]

The allegations of negligence contained in Ms. Birrell's statement 
    of claim and in the proposed amended statement of claim of Mr. Little and 
    Mr. Corfield focus on the defendants' duty of care to the plaintiffs and to 
    other persons who received transplants with tissue or bone supplied by the 
    B.C. Ear Bank to ensure that the tissues and bones had been properly screened, 
    sterilized and tested before distribution.  The plaintiffs further allege 
    that the defendants failed to maintain accurate, complete and legible records 
    relating to the tissue and bone at the B.C. Ear Bank.  The plaintiffs particularize 
    17 grounds of the defendants' negligence and breach of duty, including allegations 
    that the defendants failed to conduct investigations as to the suitability 
    of donors before collecting tissue and bone; failed to meet basic safety standards 
    of practice for preventing the transmission of infectious diseases; and failed 
    to adequately train, inspect and supervise staff in the collection, processing, 
    storage and distribution of tissue and bone.  As a result of the defendants' 
    alleged negligence, the plaintiffs claim non-pecuniary damages; damages for 
    past and future income loss; damages for loss of earning capacity and future 
    loss of opportunity; damages for nervous shock, stress and anxiety after being 
    informed of the risk of infection and the need for medical testing and monitoring; 
    damages for past and future cost of care; and special damages.

[8]

Prior to hearing the application to add the two new plaintiffs and 
    the application by the defendants for dismissal of the claim pursuant to Rule 
    18(A), the chambers judge was asked to rule on the plaintiff's application 
    that these motions be heard together with the application to certify the action 
    as a class action.  In reasons given 7 December 2006 (2006 BCSC 1814), the 
    judge considered the relevance of the applicability of the
Rules of 
    Court
to proposed class proceedings; the fact that the proposed plaintiffs 
    may have a valid cause of action against the defendants; the relevant limitation 
    periods; and the cost of certification proceedings.  The judge concluded that 
    the plaintiff's application to add additional plaintiffs pursuant to Rule 
    15(5) and the defendants' application to have Ms. Birrell's application dismissed 
    under Rule 18(A) should be heard prior to the certification hearing.  She 
    concluded at para. 26:

I have concluded that the possibility of streamlining some issues prior to 
    the certification hearing outweighs the disadvantages that might accrue by 
    reason of delay due to interlocutory appeals or the interplay between the 
    issues on both applications.  In this case, I have concluded that the goal 
    of judicial economy will best be achieved by hearing in this order, the applications 
    to add plaintiffs and to dismiss the existing plaintiff's claim as against 
    the defendants Providence and Vancouver Coastal before the certification hearing.

[9]

At the hearing before the chambers judge on 4 April 2007 on the above-mentioned 
    motions, Providence and Vancouver Coastal opposed the application to add Mr. 
    Little and Mr. Corfield as plaintiffs on the ground that their claims were 
    statute-barred by operation of the ultimate limitation period for claims against 
    hospitals contained in s. 8 of the
Limitation Act
, R.S.B.C 1996, 
    c. 266.  The defendants submitted that Mr. Corfield's ultimate limitation 
    period for claims against hospitals expired in 1997, eight years before the 
    filing of Ms. Birrell's writ.  They argued that Mr. Little's ultimate limitation 
    period expired in April 2002, three years before the filing of Ms. Birrell's 
    writ.

[10]

The chambers judge granted the motion to add the two new plaintiffs.  
    At paras. 4348 of her reasons (2007 BCSC 668) she said:

To complicate matters further in this case, the Proposed Plaintiffs received 
    notice of the negligent conduct more than six years after the original negligent 
    act.  This means that if they were actually infected at the time of their 
    transplant, they have no cause of action against the Hospital Defendants by 
    virtue of section 8 of the
Limitation Act
they suffered damage at the 
    time of the original surgery when they received the infected tissue.  The 
    limitation period began to run at the date of the original negligent conduct 
    and their actions are statute barred.

However, if they were not infected, as counsel advise, they would be able 
    to assert a cause of action against the Hospital Defendants, as they would 
    have suffered no damages until receiving notice of the risk of infection, 
    causing nervous shock.  Ironically, this means that a person who suffers transient 
    shock on receipt of the letter may assert a cause of action, while a person 
    who receives the same notice and suffers the same shock, only to go on to 
    find out that they have a permanent, infectious and life-threatening illness, 
    which will drastically affect them, has no claim for damages.  The plaintiff 
    acknowledges this is an absurdity that flows from this interpretation of the
Limitation Act
.

While the absurdity caused by the commencement of the running of the ultimate 
    limitation period from the date damage is suffered is acutely demonstrated 
    by the present case, the problem has not escaped prior notice.  The British 
    Columbia Law Institute in
The Ultimate Limitation Period:  Updating the 
    Limitation Act

(Vancouver:  BCLI Report No. 19, July 2002) at 16-18 
    has noted that sub-section 8(1) provides that the ultimate limitation period 
    starts to run from the date the cause of action arose which, in the case of 
    negligence, means that time runs from when the damage occurs.  The BCLI notes 
    several problems with this position and recommends amending section 8 of the
Limitation Act
, so that the ultimate limitation period commences from 
    the date an act or omission that constitutes a breach of duty occurs, regardless 
    of the basis of the cause of action.

However, the Legislature has not acted upon these recommendations.  The wording 
    of section 8 speaks in terms of
the date on which the right to bring an 
    action arose
.  Despite the strong arguments of the Hospital Defendants, 
    to the effect that the nervous shock head of damages relates to the issue 
    of discoverability and, therefore, that the ultimate limitation period of 
    six years has expired for both the plaintiff and the Proposed Plaintiffs, 
    I cannot agree that the plain and clear language of the section allows such 
    an interpretation.

In an action for negligence, there is no cause of action and, consequently, 
    no right to bring an action until after the plaintiff suffers damages.  In 
    the case of a plaintiff who suffers no physical injuries, there is no right 
    to sue until harm causing nervous shock creates damages.  If the nervous shock 
    never occurs, the plaintiff has not suffered any damages and, consequently, 
    never has a right to bring an action.

While I find this interpretation to result in an absurdity that is irreconcilable 
    with the scheme and object of the
Limitation Act
, not to mention unjust 
    for those who have actually suffered physical harm, I cannot see that the 
    right to bring an action for uninfected persons arose at any time before the 
    nervous shock was suffered.  Consequently, the ultimate six-year limitation 
    period has not expired against the Hospital Defendants if, as counsel agree, 
    the plaintiff and Proposed Plaintiffs suffered not physical harm, but only 
    nervous shock, as a result of the alleged negligence on the part of the defendants.

[11]

The applicants contend that the chambers judge erred in law:

(a)        
    in failing to properly interpret and apply the ultimate limitation period 
    contained in s. 8 of the
Limitation Act
, in particular in finding 
    that the cause of action did not accrue until receipt of the letters advising 
    of the concerns with the Ear Bank, thus postponing the running of the ultimate 
    limitation period;

(b)        
    in failing to dismiss the action against the hospital defendants pursuant 
    to Rule 18(A) given that Ms. Birrell had no cause of action against any of 
    the defendants and the proposed substituted plaintiffs also had no cause of 
    action against the hospital defendants by reason of the expiry of the ultimate 
    limitation period;

(c)        
    in allowing a claim which disclosed no cause of action to serve as a litigation 
    vehicle for the addition of new plaintiffs whose claims were statute barred; 
    and

(d)        
    to the extent that the chambers judge was exercising a discretion in the adding 
    of the plaintiffs, she did so based upon an incorrect interpretation of the 
    ultimate limitation period such that her discretion should be set aside.

[12]

The criteria to be considered in an application for leave to appeal 
    are settled:
Power Consolidated (China) Pulp Inc. v. B.C. Resources 
    Investment Corp
. (1988), 19 C.P.C. (3d) 396 (B.C.C.A.).  They include:

(i)         
    whether the point on appeal is of significance to the practice;

(ii)        
    whether the point raised is of significance to the action itself;

(iii)       
    whether the appeal is
prima facie
meritorious or, on the other hand, 
    whether it is frivolous; and

(iv)       
    whether the appeal will unduly hinder the progress of the action.

[13]

As to the second and fourth criteria, I note the remarks made by Madam 
    Justice Prowse upon the plaintiff's application to have all future proceedings 
    in this Court adjourned until such time as an application for certification 
    of the proposed class action had been heard and decided.  As I have noted, 
    the case management judge addressed the possibility of an interlocutory appeal 
    at para. 26 of her December 2006 reasons.  At para. 7 of Madam Justice Prowse's 
    reasons (indexed as 2007 BCCA 574), she noted:

[] 
    I do not see anything that has occurred since the case management judge made 
    her scheduling decision in December 2006, which indicates that she was in 
    error in deciding that these applications should be dealt with, including 
    any appeal arising therefrom prior to certification.  On the contrary, one 
    of the important issues on appeal is the ultimate limitation period with respect 
    to the defendants, Providence and Vancouver Coastal.  Depending on the determination 
    of that issue those two parties might well be able to extricate themselves 
    from these proceedings.  While the plaintiffs would still be seeking to sue 
    U.B.C., a consideration of efficiencies must take into account the interests 
    of all parties.

[14]

I respectfully adopt the remarks of Madam Justice Prowse and conclude 
    that it is obvious that the point raised by the applicants is of significance 
    to the action itself.  Furthermore, as the case management judge herself indicated, 
    an appeal from her important ruling would not unduly hinder the progress of 
    the action.

[15]

As to whether the point on appeal is of significance to the practice, 
    the applicants contend that the proposed appeal is of general importance in 
    that it is the only case in which it has been held that the ultimate limitation 
    period provided for in s. 8 of the
Limitation Act
does not begin 
    to run in cases involving claims for negligence resulting in nervous shock 
    until the "nervous shock" is suffered, notwithstanding when the 
    act of negligence occurred.

[16]

The applicants further contend that even the chambers judge acknowledged 
    that her interpretation of the ultimate limitation period leads to the logically 
    absurd result that claims of those who were actually infected more than six 
    years ago and who later learned of the difficulties with the Ear Bank and 
    who suffered nervous shock would be statute-barred, while those who claimed 
    for damages purely for nervous shock would not be statute-barred.  The plaintiff 
    contends that the admittedly absurd result referred to by the chambers judge 
    is not unknown in the context of legislative interpretation.  As counsel for 
    the plaintiff notes, the report of the British Columbia Law Institute in July 
    2002 recommended changes to the ultimate limitation period contained in s. 
    8 and the Legislature has not, to date, seen fit to enact the recommended 
    changes.

[17]

However, in my opinion, the central question to be asked is whether 
    the absurdity found by the chambers judge was properly founded on a correct 
    interpretation of the legislative scheme.  As the applicants contend, the 
    chambers judge's finding has broad implications for all claims involving nervous 
    shock and the applicability of s. 8 of the
Limitation Act
to 
    such claims.  These arguments strongly support a finding that the proposed 
    issues on appeal are of significance to the practice.

[18]

The final question to address is whether the appeal is
prima facie
meritorious or, on the other hand, whether it is frivolous.  The plaintiffs 
    contend that the appeal in respect of the ultimate limitation period and in 
    respect of the addition of the new plaintiffs is not meritorious.  It is obvious 
    that the issues concerning the limitation period and the addition of parties 
    are closely interrelated.  I am unable to say that the usual stringent scrutiny 
    of applications for leave to appeal a discretionary decision by a case management 
    judge (the decision to add plaintiffs) applies in the context of an order 
    which addresses an inextricably related legal issue concerning the running 
    of the limitation period.  Because I am convinced that leave to appeal should 
    be granted, I think it prudent, and in accordance with the usual practice 
    of the Court, to simply say that the issues cannot be said to be frivolous 
    or unmeritorious.  In other words, the issues identified by the applicants 
    raise legitimate questions and deserve appellate consideration.

[19]

It follows, for all of the above reasons, that I am persuaded that 
    leave to appeal on the issues identified by the applicants should be granted.

[20]

Leave to appeal has been filed by both Providence (CA035140) and Coastal 
    Health (CA035145).  The parties agree that if leave to appeal is granted, 
    the appeals be heard at the same time and that only one set of materials need 
    be filed.  The parties also consent to an order that if leave to appeal is 
    allowed, the motion book on the application for leave to appeal serve as the 
    Appeal Book on the appeal.  I so order.

The Honourable Madam Justice Kirkpatrick


