COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Olenga v. Royal Columbian Hospital (R.C.H.), |
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2018 BCCA 349 |
Date: 20180910
Docket: CA44533
Between:
K.J.O., A.Z.O., A’O’A and Lombadisha Aime Olenga
also known as Aime Olenga
Appellants
(Plaintiffs)
And
Royal Columbian Hospital (R.C.H.), Dr. L. Adam, Dr. B. Mathew,
Dr. Lavoie, Dr. Nidhi Sood, Dr. B. Yang et al.
Respondents
(Defendants)
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Before: |
The Honourable Madam Justice D. Smith The Honourable Mr. Justice Groberman The Honourable Madam Justice MacKenzie |
On appeal from: An
order of the Supreme Court of British Columbia, dated
June 8, 2017 (Olenga v. Royal Columbian Hospital (R.C.H.)), 2017 BCSC
975,
New Westminster Docket S179138).
Oral Reasons for Judgment
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Appellant Appearing in Person: |
L. A. Olenga |
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Counsel for the Respondent, Royal Columbian Hospital: |
D.J.A. Bell N.T. Wood |
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Counsel for the Respondent Physicians: |
D.H. Liu |
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Place and Date of Hearing: |
Vancouver, British Columbia September 10, 2018 |
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Place and Date of Judgment: |
Vancouver, British Columbia September 10, 2018 |
Summary:
Mr. Olenga appeals the dismissal of his Notice of Civil Claim on the ground that it was statute barred. He submits the judge erred in his application of the discovery provisions of the Limitation Act. Held: Appeal dismissed. The appellant’s evidence and formal admissions, which were confirmed by the respondents’ evidence, established that his claims were statute barred.
[1] D. SMITH J.A.: Mr. Olenga appeals an order that dismissed his Notice of Civil Claim against the respondent physicians and the respondent Fraser Health Authority, operating as a public hospital at New Westminster, British Columbia under the name of Royal Columbian Hospital (“R.C.H.”), on the ground that the action was statute-barred having been commenced after the expiry of the two-year limitation period. The order was granted to the respondents following a summary trial pursuant to Rule 9–7 of the Supreme Court Civil Rules. The reasons for judgment are indexed at 2017 BCSC 975.
[2] On December 31, 2013, Mr. Olenga, age 54, attended R.C.H. complaining of urinary retention. He had a history of lower urinary tract symptoms and an enlarged prostate.
[3] A Foley catheter was inserted and he was referred to internal medicine where he was found to have life-threatening hyperkalemia, severe renal failure and obstructive uropathy. He was monitored and treated for high potassium and was given antibiotics for six days. Dr. Matthew Bernard and Dr. Nidhi Sood oversaw his medical treatment during this period. On January 6, 2014, Mr. Olenga had the medical staff remove the catheter and he discharged himself from the hospital against medical advice.
[4] On January 8, 2014, Mr. Olenga returned to R.C.H. with urinary retention and acute renal failure. On admission to the emergency room, he was seen by Dr. Adam Lund. He was referred to internal medicine where he remained until January 19, 2014. Between January 9, 2014, and January 12, 2014, Dr. Sood again was involved in his care. On January 9, 2014, Dr. Brian Yang, an urologist, saw Mr. Olenga on consultation. On January 17, 2014, Dr. Yang performed a greenlight laser vaporization procedure on Mr. Olenga. On the same day, Mr. Olenga discharged himself from the hospital contrary to Dr. Yang’s recommendation that he remain there under observation until he had medically improved.
[5] On February 14, 2014, Mr. Olenga saw his family doctor complaining about his medical treatment at R.C.H. between December 31, 2013, and January 19, 2014. During this appointment, his family doctor gave Mr. Olenga a copy of Dr. Yang’s operative and consultation reports.
[6] On March 11, 2014, Mr. Olenga saw Dr. Yang for a follow-up appointment. He did not allow Dr. Yang to examine him and complained that, as a result of his medical treatment at R.C.H., he had no ejaculate volume and would not be able to father more children.
[7] On April 22, 2014, Mr. Olenga saw his family doctor and obtained from him a copy of Dr. Yang’s March 11, 2014 letter regarding his follow-up meeting of that date. In the letter, Dr. Yang reported that Mr. Olenga was voiding reasonably well, and although they had a full discussion about the risks and benefits of the surgery before it was performed, Mr. Olenga was upset with his overall treatment from admission to the present. Mr. Olenga deposed in an affidavit filed in response to the respondents’ summary trial application that it was seeing Dr. Yang’s March 11, 2014 letter on April 22, 2014, “that was determinant in commencing this action against the hospital and its doctors.”
[8] On April 1, 2016, Mr. Olenga filed the Notice of Civil Claim in which he made claims against each of the named respondent doctors and R.C.H. He included “Dr. Lavoie” in his claims but served a Dr. Denis Lavoie of Vernon, who did not know him and deposed that he had never seen or treated him.
[9] On February 28, 2017, Mr. Olenga filed an amended Notice of Civil Claim.
[10] In response to a Notice to Admit served on him by the respondents, Mr. Olenga admitted that:
1. When he left R.C.H. on January 6, 2014, he was of the view that the treatment he had received from the physicians during his hospital admission from December 31, 2013, to January 6, 2014, was inadequate and had caused him pain and suffering;
2. When he left R.C.H. on January 19, 2014, he was of the view that the treatment he had received from the physicians during his hospital admission from January 8, 2014, was inadequate and caused him pain and suffering, and that he did not consent to the surgery;
3. On March 11, 2014, he saw Dr. Yang. On that date he was of the view that the treatment he had received from Dr. Yang was not adequate and had caused him pain and suffering and damage; and
4. He was treated by Dr. Adam Lund, Dr. Nidhi Sood, Dr. Brian Yang and Dr. Matthew Bernard during his admissions at RCH between (a) December 31, 2013, to January 6, 2014; and (b) January 8–16, 2014.
[11] Mr. Olenga did not appear at the summary trial hearing. The judge allowed the respondents to proceed in his absence after considering the following: (i) Mr. Olenga had advised counsel for the respondents that he was available for a summary trial hearing in June 2017; (ii) counsel for the respondents notified Mr. Olenga on April 24, 2017 and May 9, 2017 respectively, of the June 7–9, 2017 hearing date for the summary trial; (iii) thereafter, the respondents served Mr. Olenga with their materials in support of their applications to dismiss the Notice of Civil Claim for being statute-barred; (iv) on May 19, 2017, Mr. Olenga advised counsel for the respondents that he “will not be able to attend on June 7 through 9, 2017, [because] [h]e has other business to attend that was scheduled way before that he cannot reschedule”; he also complained about the hearing being scheduled in Vancouver when the action had been commenced in New Westminster; (v) counsel for the respondents advised Mr. Olenga that in the absence of any documentation to support his claim that he was no longer available after he had agreed on the June hearing dates, they intended to proceed with their applications and advised him that he would have to apply for an adjournment; (vi) on May 31, 2017, Mr. Olenga appeared in chambers on an application for an order that he be granted indigent status in the Notice of Civil Claim proceedings; he was successful in his application but made no request at that time for an adjournment of the scheduled June 7–9 hearing date; (vii) on May 31, 2017, Mr. Olenga filed an affidavit and response to the respondents’ applications; and (viii) from the materials filed by Mr. Olenga, the judge understood his position to be that his acceptance of the June hearing date did not come from him but rather from an “aid” who had control of his computer and that he planned to be in Victoria visiting his daughter on the hearing dates (at para. 3). Based on these circumstances, the judge concluded:
[5] There is no evidence of any kind that Mr. Olenga was unable to attend the hearing of this application for reasons, for instance, of medical infirmity or long-planned absence from the jurisdiction. Rather, the evidence suggests that he chose not to attend, preferring instead to travel to Victoria, without troubling to apply for an adjournment so that his reasons for preferring a later date could be scrutinized and the interests of the parties properly balanced. In these circumstances, I am satisfied that it is appropriate to proceed with the application in Mr. Olenga’s absence. Mr. Olenga has had a good deal of notice of the pending hearing, and ample opportunity to apply for an adjournment. Mr. Olenga is not new to the litigation process and must be taken to have understood the risk he was taking by not bothering to do so.
[12] Mr. Olenga is self-represented and prepared his own pleadings. They are difficult to follow. At their core, however, they appear to advance a damages claim for medical malpractice arising from the medical treatment he received at R.C.H. between December 31, 2013, and January 19, 2014. Mr. Olenga alleges that the medical treatment he received was negligently performed and, with respect to the surgery, without his consent because he was of “unsound mind and mentally impaired”. The pleadings advance numerous other claims, including a claim of “discrimination”. However for the most part they appear to allege torts related to his central claim of negligent medical treatment.
[13] The amended Notice of Civil Claim also includes claims on behalf of three initialled plaintiffs, whom Mr. Olenga advises are his children. Their claims are for “alienation of care, love attention, family interaction deserved and pain, and sufferings of loss of love, loss of guidance and loss of companionship.” Two of the children however are adults and have not joined in the Notice of Civil Claim; the third child is a minor and is not represented by a litigation guardian as required by the Supreme Court Civil Rules. Significantly, the amended Notice of Civil Claim fails to disclose any cause of action by the children against the respondents or allege that any of the respondents had provided the children any treatment or had any relationship of any kind with them. In these circumstances, the judge dismissed the initialled plaintiff’s claims.
[14] Citing Honda Canada Inc. v. Keays, 2008 SCC 39, and Schultz v. Beacon Roofing Supply Canada Company, 2016 BCSC 1475, the judge dismissed Mr. Olenga’s damages claim for “discrimination”, finding that such a claim falls within the exclusive purview of the B.C. Human Rights Tribunal.
[15] The judge also dismissed the claims against “Dr. Lavoie”. Mr. Olenga apparently served the amended Notice of Civil Claim on a Dr. Denis Lavoie who lives and practices in Vernon, B.C. Dr. Denis Lavoie filed a response to the amended Notice of Civil Claim in which he deposed that he has never provided any medical care to Mr. Olenga or any of his children, or that he had any relationship of any kind with Mr. Olenga or his children. Evidently, a “Dr. Lavoie” signed an order sheet relating to Mr. Olenga’s care at R.C.H. on January 9 and 10, 2014, but that “Dr. Lavoie” was not Dr. Denis Lavoie of Vernon.
[16] Last, relying on Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) at 214–16; and Barkwill v. Parchomchuk, 2011 BCCA 207 at para. 14, the judge found that the respondents’ applications could be determined by way of a summary trial as: (i) they did not require any findings of credibility; and (ii) the material facts in support of the respondents’ limitation defence pursuant to the provisions of the Limitation Act, S.B.C. 2012, c. 13 (the “Act”) were largely undisputed and could readily be determined on the materials filed.
[17] The judge concluded that the respondents had established that Mr. Olenga’s claims were statute-barred under the Act.
[18] Section 6 (1) of the Act provides a basic limitation period of two years “after the day on which the claim is discovered.” The basic limitation period was applicable to Mr. Olenga’s claims.
[19] The general discovery rules for establishing the commencement date for the limitation period are set out in s. 8 of the Act. They provide:
8. Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following:
(a) that injury, loss or damage had occurred;
(b) that the injury loss or damage was caused by or contributed to by an act or omission;
(c) that the act or omission was that of the person against whom the claim is or may be made;
(d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.
[20] Mr. Olenga’s position at trial was that he did not discover his claims against the respondents until he saw Dr. Yang’s March 11, 2014 follow-up letter on April 22, 2014, and therefore he had until April 22, 2016 to commence his Notice of Civil Claim.
[21] The respondents’ position at trial was that based on Mr. Olenga’s admissions and affidavit evidence, which was confirmed by the respondents’ affidavit evidence, Mr. Olenga discovered his claims or at the very least reasonably ought to have discovered his claims based on the factors in s. 8 of the Act on January 19, 2014.
[22] The judge found that time began to run against all of the respondents, except “Dr. Lavoie”, by January 19, 2014. He added that even if he was to give Mr. Olenga the “benefit of any doubt”, the time began to run no later than March 11, 2014, when Mr. Olenga saw Dr. Yang for the follow-up examination. He rejected Mr. Olenga’s position that the time began to run on April 22, 2017, because he found that Dr. Yang’s follow-up letter of that date, with respect to Mr. Olenga’s March 11, 2014 visit, “added nothing to what Dr. Yang told Mr. Olenga on March 11, 2014, and could not have altered Mr. Olenga’s state of knowledge.”
[23] The judge explained his finding in the following paragraphs of his reasons:
[51] On the basis of Mr. Olenga’s admissions, his affidavit evidence, and the hospital records and physicians’ notes, I find that by January 6, 2014, Mr. Olenga was of the view that he had been mistreated during his admission to Royal Columbian Hospital between December 31, 2013, and January 6, 2014, that he had suffered damage as a result, and indeed that this was one of the reasons why he discharged himself against medical advice. As noted, Mr. Olenga is no stranger to litigation and to invoking the process of the court to enforce his rights (see, for instance, Olenga v British Columbia, 2015 BCSC 1050 and 2015 BCSC 2119. His litigation experience includes the effect of the Limitation Act and claiming against professionals: see Olenga v. ICBC, 2005 BCSC 1015 (CanLII).
[52] In these circumstances, I find that the requirements set out in subparagraphs (a), (b) and (d) of section 8 of the Act have been satisfied.
[53] That leaves the requirement set out in subparagraph (c), concerning the identity of the person against whom the claim is or may be made.
[54] I come to the same conclusion with respect to the second admission. I find that, on a balance of probabilities, by January 19, 2014, and quite clearly by March 11, 2014, the requirements set out in subparagraphs (a), (b) and (d) were met on Mr. Olenga’s own evidence. But again, what about the identity issue?
[55] As to Dr. Yang, I have no difficulty in finding on the evidence that Mr. Olenga was aware of his identity by the time of his discharge, and was reminded of it both in February 2014 when he saw his family physician, and, of course, again on March 11, 2014, when he saw Dr. Yang for follow-up.
[56] There can be no doubt that Mr. Olenga was aware that all of this treatment took place at Royal Columbian Hospital throughout the period of his two admissions.
[57] With respect to Dr. Bernard, Dr. Sood and Dr. Lund, I am satisfied from the interactions recorded in the chart and from Mr. Olenga’s own evidence about those interactions and his state of mind during the two admissions that, by January 19, 2014, when he was discharged after his second admission, he knew or was in a position reasonably to have discovered their identity as persons against whom a claim could be made relating to his obvious concerns about his treatment.
[58] I cannot say the same about Dr. Lavoie given Mr. Olenga’s evidence about his state of mind during the time of Dr. Lavoie’s apparent involvement, and the fact that we still do not know who Dr. Lavoie really is, other than he is not the person who was served and who is presently a party. In other words, I am not in a position on the evidence before me to determine whether Mr. Olenga reasonably ought to have known of Dr. Lavoie’s identity within the period more than two years before the commencement of the action on April 1, 2016.
[24] He added the following:
[62] It will be observed that Mr. Olenga commenced his action only a few weeks after the expiry of the limitation period. The law is clear, however, that no discretion is involved in determining whether a limitation defence arises. On the facts, a claim is either time-barred by the Act or it is not: see Bell v Ries, 2016 BCSC 309 at para 75, affirmed 2017 BCCA 82. In this case, it is.
[25] The judge also dismissed Mr. Olenga’s claim that he was a person under a disability within the meaning of s. 19 of the Act. Section 19 sets out a different discovery rule for a person under a disability, which it defines “an adult person who is incapable of or substantially impeded in managing his or her affairs”. The judge noted that: (i) there was no evidence to support Mr. Olenga’s contention that he was a person under a disability; (ii) in 2014 and 2015 Mr. Olenga was able to pursue other litigation claims in B.C., which indicated that he had an ability to manage his own affairs; and (iii) in an unrelated application on August 24, 2016, before another judge, he had requested among other things to be accommodated for an alleged mental disability and his application was dismissed.
[26] In the result, the judge dismissed the amended Notice of Civil Claim against the respondents, the initialled plaintiffs and Dr. Denis Lavoie.
[27] Mr. Olenga raises a number of issues on appeal, which can generally be summarized as follows:
1. Did the judge err in finding the matter was suitable for a summary trial?
2. Was the summary trial proceeding procedurally unfair?
a) Because Mr. Olenga was denied his participatory rights;
b) Because the judge did not explain why he came to his conclusion; and
c) Because the judge exceeded his jurisdiction or was biased,
3. Did the judge err in dismissing the claim?
a) by not considering the merits of the underlying claim;
b) by deciding a New Westminster case in Vancouver;
c) by failing to consider or misapprehending his evidence; and
d) by finding the limitation clock started on January 19, 2017.
[28] In the appeal, Mr. Olenga applies to admit fresh evidence of: (i) B.C. Ferries tickets showing that he had travelled to Victoria during the dates set for the summary trial; and (ii) several excerpts from medical texts regarding the male prostrate and related medical procedures.
[29] I would not admit this proposed evidence as in my view it fails to meet the well-established criteria for the admission of fresh evidence as set out in R. v. Palmer, [1980] 1 S.C.R. 759 at 775. Moreover, the judge accepted that Mr. Olenga was in Victoria at the time of the summary trial and therefore the proposed evidence of the ferry tickets could not have affected the result. Similarly, the medical literature was irrelevant to the limitation period issue and could not have affected the result.
[30] A judge’s decision as to the suitability of a summary trial is a discretionary one and entitled to appellate deference absent a clear conclusion that the exercise of his or her discretion was wrongly exercised by giving no or insufficient weight to relevant considerations, or was clearly wrong and may result in an injustice: Gichuru v. Pallai, 2013 BCCA 60 at para. 34; and Karsonas v. Stamoulos, 2010 BCCA 336 at para. 13.
[31] The material facts to establish the criteria in s. 8(a), (b), and (d) of the Act were not in dispute. Indeed, as the judge noted (at para. 51), Mr. Olenga’s formal admissions and affidavit evidence, and the hospital records and physicians’ notes, confirmed the dates Mr. Olenga attended at R.C.H. and the treatment he received. They also confirmed s. 8(c), namely that Mr. Olenga knew or reasonably ought to have known the identity of the doctors who treated him, including Dr. Yang, whom he saw again after he was last discharged from the hospital. In these circumstances, the judge’s discretionary decision to proceed by way of summary trial was not “clearly wrong” and met legal test set out in Inspiration Management, where the Court stated:
[49] In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters which arise for consideration on this important question.
[32] I would not accede to this ground of appeal.
[33] The judge’s decision to proceed by way of summary trial in the absence of Mr. Olenga also involved an exercise of discretion for which appellate deference is owed, absent Mr. Olenga establishing that it was clearly wrong in all of the circumstances. In my view, Mr. Olenga has not met that standard.
[34] The evidence establishes that the hearing date for the summary trial was set in consultation with and agreed upon by Mr. Olenga. This is evident by his subsequent preparation of response materials in support of his position to oppose the application. It was only as the hearing date approached that Mr. Olenga asked counsel if they would agree to an adjournment of the hearing but gave them no reason for his request. Counsel declined his request and advised him that he would have to make an application for an adjournment of the trial. Mr. Olenga never made that application even though he was in court to apply for indigent status on May 31, 2017, presumably for the filing of his response materials to the respondents’ applications.
[35] The judge was satisfied that Mr. Olenga was an experienced litigant and able to understand the procedural requirements of the summary trial application filed against him. The judge also had all of Mr. Olenga’s response materials before him for his consideration. In these circumstances, I am unable to find the judge’s decision to proceed with the summary trial in the absence of Mr. Olenga to have been clearly wrong. I would not accede to this ground of appeal.
[36] The respondents’ limitation defence, if successful, was an absolute defence to the action. As the judge noted, the burden was on the respondents to establish that defence. Significantly, the “merits” of an action are not a relevant consideration in determining if an action is statute-barred.
[37] The judge’s finding that, the limitation period had lapsed prior to Mr. Olenga filing the Notice of Civil Claim was established by Mr. Olenga’s own admissions and affidavit evidence, and confirmed by the affidavit evidence of the respondent doctors. Mr. Olenga’s formal admissions established the date for the commencement of the limitation period, that is when he developed the view that his treatment by the respondent doctors at the respondent hospital was inadequate, caused him pain and suffering, and in the case of Dr. Yang’s surgery was performed without his consent, and thereby gave rise to the underlying action.
[38] The judge’s finding of fact that as of January 19, 2014, Mr. Olenga knew or ought reasonably to have discovered the identities of the respondent doctors who treated him in a manner that he believed was negligent was clearly open to him on the evidence. That factual finding is entitled to deference from this Court absent palpable and overriding error, which Mr. Olenga has not demonstrated: Housen v. Nikolaisen, 2002 SCC 33.
[39] Mr. Olenga’s further submits that that the judge: (i) incorrectly shifted the burden of proof to the appellant; (ii) was biased; (iii) failed to consider that the claims were in tort; and (iv) was wrong in finding that the amended Notice of Civil Claim disclosed no reasonable cause of action. There is no merit to any of these submissions. The judge correctly found that: (i) the burden of proof was on the respondents to prove their positive limitation defence; (ii) there was no evidence to support an allegation of bias or reasonable apprehension of bias; (iii) the claims being advanced were in tort; and (iv) the Notice of Civil Claim disclosed no cause of action with respect to Mr. Olenga’s children.
[40] In my respectful view, the judge applied the correct statutory test to the material facts in finding that Mr. Olenga’s claims were statute-barred under the Act. I would not accede to this ground of appeal.
[41] Last, I address this issue only because Mr. Olenga raises it in his factum as “[t]he main point in dispute in this appeal”. He submits that the Vancouver trial judge did not have jurisdiction to decide this matter as the action was commenced in New Westminster and therefore should have been heard in New Westminster. Mr. Olenga is misguided in this submission. Vancouver and New Westminster are in the same judicial district. Consequently, a matter filed in one courthouse can be heard in the other courthouse. See s. 8 and s. 9(2.1) of the Supreme Court Act, R.S.B.C. 1996, c. 443; and R. 8-2(1) and (2) of the Supreme Court Civil Rules.
[42] In the result, I would dismiss the appeal with costs payable by Mr. Olenga to the respondents.
[43] GROBERMAN J.A.: I agree.
[44] MACKENZIE J.A.: I agree.
[45] D. SMITH J.A.: The appeal is dismissed.
“The Honourable Madam Justice D. Smith”