Case Summary: Stacey Estate v Lukenchuk - Professional Negligence

For damages under the Fatal Accident Act, the plaintiff need not prove that the defendant's tort was the sole cause of the death, but only that it contributed to the death. The "but for" test for causation is applicable for this and medical negligence cases.

Stacey Estate v Lukenchuk, 2020 SKCA 55,per Kalmakoff, J.

Facts + Issues

This decision is an appeal of a Chambers decision relating to the bringing of an action under the Fatal Accidents Act for death caused by medical negligence.

The deceased, Mr. Stacey, consulted an optometrist, Dr. Lukenchuk beginning in July 2010 for issues with his left eye. Mr. Stacey saw Dr. Lukenchuk for these issues multiple times over a period of four years but the problems continued despite the examinations and treatments.

In May 2014, Mr. Stacey again saw Dr. Lukenchuk, complaining of significant impairment of his vision, eye strain and a "pulling feeling" in the back of his left eye. Dr. Lukenchuk referred Mr. Stacey to an ophthalmologist, Dr. Sharma, as he suspected a cataract. Dr. Sharma immediately identified a large growth, diagnosed as a suspected choroidal melanoma in Mr. Stacey's eye and referred Mr. Stacey to another ophthalmologist, Dr. Colleaux.

Dr. Colleaux diagnosed the growth as a uveal melanoma and arranged for additional cancer screening procedures for Mr. Stacey. The tumour was successfully removed in July 2014. However, the cancer had spread to other parts of Mr. Stacey's body, including his liver.

Mr. Stacey commenced an action against Dr. Lukenchuk in May 2015, alleging negligence. Mr. Stacey died in December 2016. At this point, the Statement of Claim was amended to reflect that Mrs. Stacey, the Plaintiff, was advancing the action under the Fatal Accidents Act (the "FAA") as executor of Mr. Stacey's estate, and was seeking damages recoverable under the FAA, loss of employment income and special damages. Per s. 6 of the Survival of Actions Act, SS 1990-91, c S-66.1, the claim against Dr. Lukenchuk only proceeded for the damages recoverable under the FAA.

Dr. Lukenchuk made an application under Rule 7-1 of The Queen's Bench Rules seeking a determination on the question, "is the Plaintiff entitled to bring a claim for recovery of damages for a less favourable life expectancy or decreased survival rate under the Fatal Accidents Act?" Mrs. Stacey argued that the question should have been framed as "can The Fatal Accidents Act support the recovery of damages for a materially reduced life expectancy?"

The Chambers judge accepted Dr. Lukenchuk's phrasing of the question and found that "it was the intention of the Legislature that a defendant in an action based on s. 3 of the FAA was someone who caused the death of the plaintiff" and that "it is not enough to have contributed to or facilitated or hastened death." As such, any negligence of Dr. Lukenchuk could not be considered the "cause" of Mr. Stanley's death, as he died from cancer, and the action against Dr. Lukenchuk could not be continued under the FAA.

Mrs. Stacey appealed this decision on the basis that the Chambers judge erred in his interpretation of s. 3(1) of the FAA, by failing to apply the principles of statutory interpretation as follows:

By failing to properly consider and apply the legislative purpose and intent behind the FAA
By failing to give s. 3(1) a "large and liberal" construction, and
By interpreting s. 3(1) in a manner that gives rise to absurd results.

The applicable sections of the FAA are as follows:

3(1) Where the death of a person has been caused by such wrongful act, neglect or default as, if death had not ensued, would have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to culpable homicide.

4(1) Every action shall be for the benefit of the spouse, parent and child of the person whose death was so caused, ... and ... such damages may be awarded as are proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought[.]

Mrs. Stacey also appealed on the basis that the Chambers judge erred in striking the claim in its entirety.

The issue the Court was faced with was whether a plaintiff could be entitled to bring a claim for recovery of damages under s. 3(1) of the FAA where the necessary causal connection between the wrongful act, neglect or default of the defendant and the death of the deceased is established. In considering this question, the Court also considered what must be proven to establish that a death was "caused by" the defendant's wrongful act, neglect or default to bring a claim within the ambit of s. 3(1) of the FAA.

HELD: Appeal allowed, action reinstated.

The Court found that the standard of review for this appeal was one of correctness, as questions of statutory interpretation and what standard of causation applies to claims brought under the FAA are both questions of law.

The Court found that the Chambers judge erred in his interpretation of s. 3(1) of the FAA.

(a) The Court found that the Chambers judge erred by misstating and misapplying the governing tort law principles of causation:

[95] In light of the foregoing, and with the greatest of respect, I am persuaded that the Chambers judge erred in his interpretation of s. 3(1) of the FAA. In finding that s. 3(1) of the FAA could not apply to a defendant who "contributed to or facilitated or hastened death", the Chambers judge misstated and misapplied the governing tort law principles of causation. He failed to recognize and apply the "but for" standard of causation and, in effect, inserted into s. 3(1) of the FAA a requirement that the defendant's negligence be shown to be the sole cause of the deceased's death, rather than something that was substantially connected to the death. In short, he imported a standard of scientific causation rather than one of factual causation for legal purposes. In my view, by so doing, he crafted an interpretation that is not harmonious with the scheme and object of the FAA and failed to give s. 3(1) a fair, large and liberal interpretation that best attains the objects of that Act.

[emphasis the Court's]

(b) The Court discussed the correct principles of statutory interpretation that are to be considered when interpreting legislation, which requires legislation be read in its ordinary sense in the context of the purpose of the legislation itself and the intention of Parliament in enacting it:

(i) The Court noted the proper approach to statutory interpretation as set out in PCL Construction Inc v Saskatoon (City), 2020 SKCA 12:

[45] The proper approach to issues of statutory interpretation is the so-called modern approach . . . which has now been codified in s. 2-10(1) of The Legislation Act, SS 2019, c L-10.2 . . . This principle or approach holds that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" . . . Benefit-conferring statutes "ought to be interpreted in a broad and generous manner" . . . Further, s. 2-10(2) of The Legislation Act requires every enactment to be interpreted in a remedial fashion and be given a "fair, large and liberal interpretation" that best attains the objects of the statute.

(ii) The Court further noted other discussions relating to the governing principles of statutory interpretation:

[39] In Ballantyne v Saskatchewan Government Insurance, 2015 SKCA 38, 456 Sask R 254, Ryan-Froslie JA wrote:

[19] The leading case with respect to statutory interpretation is the Supreme Court of Canada's decision in Re Rizzo & Rizzo Shoes Ltd, [1998] 1 SCR 27 [Rizzo Shoes]. A number of principles set out in that case are applicable to the case at hand, namely:

The words of an Act are to be read in their context and in their grammatical and ordinary sense harmoniously with the scheme of the Acts, its objects, and the intention of the legislature . . .
The legislature does not intend to produce absurd consequences. An interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent or if it is incompatible with other provisions or with the object of the legislative enactment . . .
Any statute characterized as conferring benefits must be interpreted in a broad and generous manner . . . This principle is enshrined in s. 10 of The Interpretation Act, 1995, SS 1995, c. I-11.2 . . .
Any doubt arising from difficulties of language should be resolved in favour of the claimant.

[20] In Sullivan on the Construction of Statutes . . . Ruth Sullivan sets out three propositions that apply when interpreting the plain meaning of a statutory provision:

It is presumed that the ordinary meaning of a legislative text is the meaning intended by the legislature. In the absence of a reason to reject it, the ordinary meaning prevails.
Even if the ordinary meaning is plain, courts must take into account the full range of relevant contextual considerations including purpose, related provisions in the same and other Acts, legislative drafting conventions, presumptions of legislative intent, absurdities to be avoided and the like.
In light of these considerations, the court may adopt an interpretation that modifies or departs from the ordinary meaning, provided the interpretation adopted is plausible and the reasons for adopting it are sufficient to justify the departure from ordinary meaning.

[40] In Canada Trustco Mortgage Co v Canada, 2005 SCC 54, [2005] 2 SCR 601, the Supreme Court of Canada explained how ambiguous wording in a statute may affect its interpretation when applying the modern approach set out in Rizzo Shoes:

[10] ...The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole.

(c) In considering the plain wording of the FAA in the context of its legislative history and jurisprudential treatment, the Court found that the purpose of the FAA is to allow survivors of a deceased to bring a new claim on the same basis as a claim the deceased would have brought, had they survived, against the defendant.

[71] In my view, both the legislative history and the jurisprudential treatment of fatal accidents statutes point in the same direction with respect to the scheme and purpose of the FAA. That is, the FAA's scheme and purpose is to create a new claim for the survivors of a deceased person that is framed, prosecuted and proven based on the same principles that would have applied to the claim the deceased person would have had against the defendant, had he or she survived.

(i) The Court considered the plain meaning of s. 3(1) of the FAA to require an inquiry into the nature of wrongful act that brought about an injury to the deceased, and the extent to which that act could be linked to the injury.

(1) The Court found that s. 3(1) of the FAA contains two key elements that a survivor must meet to bring an action under the act, being:

The death of the deceased must have been caused by a wrongful act, neglect or default on the part of the defendant; and
The wrongful act, neglect or default would have entitled the deceased (the "person injured") to maintain an action and recover damages if he or she had not died.

(2) The Court interpreted "caused by" as requiring the wrongful act at issue being "something that brought about the death of the deceased."

(a) The wording of the section the Court focused on was "caused by" which it interpreted as meaning "something that brings about an effect or a result."

[43] The Merriam-Webster Dictionary online (Accessed on 14 April 2020) defines "cause", when used as a verb, to mean "to serve as a cause or occasion of". When used as a noun, it defines cause as "something that brings about an effect or a result".

[44] Black's Law Dictionary (11^th ed.) defines "cause", when used as a verb, to mean "to bring about or effect". It also defines the term "legal cause" in the same way as "proximate cause", meaning "a cause that is legally sufficient to result in liability; an act or omission that is considered in law to result in a consequence".

(3) The Court found that the text of s. 3(1), as a whole, suggests that any inquiry undertaken under the section focus on the nature of the act at issue, and the extent to which that act can be linked to the injury and death of the deceased.

[45] The surrounding text of s. 3(1), by using terms like "wrongful at, neglect or default", and "would have entitled the person injured to maintain an action and recover damages in respect thereof" suggests that the FAA is intended to operate consistently with principles of tort law, including relevant concepts of causation. It suggests that the focus of the inquiry should be on the nature of the "wrongful act, neglect or default", and the extent to which that "act, neglect or default" is linked to the injury suffered and the ultimate death of the deceased.

(ii) On a review of the legislative history of the FAA, the Court determined that the purpose of the FAA was to create a statutory cause of action for family members of a deceased with a focus on the legal liability of the party causing the death and it was intended for ordinary principles of legal liability to apply to issues of causation.

(1) The Court reviewed the history of fatal accidents legislation at length and considered the similarities of initial fatal accidents legislation to the FAA.

(a) Around 1808, there was no common law cause of action available for seeking damages suffered by an individual, while they were alive, after that person's death.

(b) Legislative reform occurred in 1846, when An Act for compensating the Families of Persons killed by Accidents, 9 & 10 Vict, c 93 ("Lord Campbell's Act") was introduced, seeking to address the lack of cause of action available in common law. The Court noted that Lord Campbell's Act is the basis for the FAA.

[50] ...Lord Campbell's Act forms the basis of the current FAA:

[71] ...Lord Campbell's Act conferred a cause of action on spouses, parents, and children of a victim of a wrongful death, as follows:

... whensoever the Death of a Person shall be caused by wrongful Act, Neglect, or Default, and the Act, or Default is such as would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover Damages in respect thereof, then and in every such Case, the person who would have been liable if Death had not ensued shall be liable to an Action for Damages, notwithstanding the Death of the Person injured, and although the Death shall have been caused under such Circumstances as amount in Law to Felony.

[51] ...s. 3(1) of the FAA incorporates the "basic statement of liability" that was set out in Lord Campbell's Act and retains the substance of that enactment, with minor linguistic differences.

(c) The Court went on to note that ss 4 and 4.1 of the FAA sets out who can bring about an action on behalf of a deceased person and the types of damages that may be recovered.

(2) The Court determined that the purpose of Lord Campbell's Act, as incorporated in the FAA, was to create a statutory cause of action for family members of a deceased with a focus on the legal liability of the party causing the death.

[53] ...[T]he cause of action created by Lord Campbell's act and incorporated in the FAA "involves a combination of features that suggests it is both derivative of the action the deceased would have had if death had not ensued and that it is a new and different action not belonging to the deceased". An action under the FAA is "for the benefit of the enumerated surviving family members and their injury defines the damages" (emphasis in original), which "extend to compensation for losses that reflect the survivors' losses and not the deceased's own losses, such as the statutorily defined damages for bereavement currently codified in s. 4.1 of the Fatal Accidents Act".

[54] ...[A]s long as the "wrongful act, neglect or default" on the part of the defendant would, itself, have created legal liability if the deceased had not died, the survivors of the deceased can maintain an action under the FAA if the necessary causal link exists between the wrongful act or omission and the deceased's death.

(3) On reviewing Parliamentary debates relating to Lord Campbell's Act the Court found that Parliament intended for claims brought under Lord Campbell's Act to be subject to normal principles of legal liability when dealing with questions of causation.

[59] The Lord Advocate then spoke directly to the matter of causation, stating:

... [W]ith respect to the first point, namely, the construction to be put on the words "causing death," the right hon Gentleman would observe, if he read the 1^st Clause of the Bill, that it was not intended to alter the ground of liability at all. It said, if the party was guilty of such misconduct as would make him liable if death had no ensued; and, therefore, it appeared that there was no intention to alter the liability. . . .

(Emphasis added by the Court)

[60] In my view, the use of terms like "carelessness" and "negligence", the references to executors or administrators being able to maintain actions in "precisely the same way" as the original plaintiff, the discussions regarding concerns over vicarious liability, and the statement that the Bill "was not intended to alter the ground of liability" all point strongly to the conclusion that it was Parliament's intention that ordinary principles of legal liability would apply to the question or causation in claims brought under Lord Campbell's Act.

(iii) The Court further reviewed the jurisprudential treatment of the fatal accidents legislation that have a basis in Lord Campbell's Act and found that "caused by" should be "interpreted and applied in accordance with ordinary tort law principles of causation where the claim is framed in tort."

(1) In Littley v Brooks and Canadian National Ry. Co, [1932] SCR 462, and Haley v Brown Fraser & Co Ltd. (1954), [1955] 1 DLR 769, the courts found that the survivors of a deceased could bring an action even where the deceased was contributorily negligent in their own death, with an appropriate apportionment of liability. These findings reject a narrow interpretation of causation in fatal accident matters.

(2) In Ellsworth v Jablonski, 2011 ABQB 667, the Court found that while a doctor did breach the standard of care required for the assessment and treatment of the deceased (who had died of cervical cancer), the doctor was not negligent for failing to properly screen the deceased for cancer as causation could not be made out.

(3) In Braun Estate v Vaughan (1997), [1998] 4 WWR 171, a doctor was found negligent for failing to diagnose the deceased with the condition that caused her death, as he failed to review a report that recommended further action for the deceased's treatment.

(4) In discussing Fullowka v Pinkerton's of Canada Ltd., 2010 SCC 5, the Court noted that "the Supreme Court appeared to take no issue whatsoever with the notion that normal tort law standards of causation apply to causative requirement in fatal accidents legislation." (Emphasis added by the Court)

(5) In Martin v Inglis, 2002 SKQB 157, the Court noted that the normal principles of causation and tort law were applied by that court in relation to a claim brought under the FAA.

(d) The Chambers judge was held to have erred by incorrectly applying the "but for" test and determining that s. 3(1) required the defendant's negligence be the sole cause of the deceased's death.

(i) The Court identified and discussed the two different approaches to take in determining causation in tort law matters, being the but for test, which is the primary approach to be taken, and the material contribution test, which only applies in situations where fault or negligence has been established, there are more than one negligent party and it is impossible to determine "whose negligence was a 'but for' cause".

(1) The Court cited Resurfice Corp v Hanke, 2007 SCC 7 [Hanke] in discussing the but for test:

[73] In Hanke, the Supreme Court of Canada confirmed that the "but for" test remains the operative approach for determining causation in tort law, subject to special circumstances in which the "material contribution" test applies. In that regard, McLachlin CJC wrote:

...

[21] First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.

...

[23] The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and the defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may well be due to factors unconnected to the defendant and not the fault of anyone".

(2) The Court noted that the "material contribution" test "may apply in certain circumstances where there are multiple tortfeasors who each contribute to the risk of injury but it is impossible to tell which of them actually caused the injury."

(3) The Court noted the governing principles of causation in tort law:

[75] ...McLachlin C.J. ... summarized the governing principles of causation in tort law:

[46] The foregoing discussion leads me to the following conclusions as to the present state of law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss "but for: the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant's negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant's conduct materially contributed to risk of the plaintiff's injure, where (a) the plaintiff has established that her loss would not have occurred "but for" the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or "but for" cause of her injury, because each can point to one another as the possible "but for" cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

(ii) The Court identified that is not necessary for the defendant's actions to be the sole cause of the deceased's injuries, and causation can be established via the "but for" test as long as there is a "substantial connection" between the conduct and the injury.

[77] Causation may be established on a "but for" basis notwithstanding that the defendant's negligence is not the sole, or even the primary, cause of the plaintiff's injury. In Athey, the Supreme Court said:

[17] It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring...

[Emphasis added by the Court]

[78] Causation under the "but for" test merely requires that there be a "substantial connection: between the defendant's conduct and the injury suffered by the plaintiff . . . Causation will be made out under the "but for" test if the defendant's negligence caused the whole of the plaintiff's injury, or contributed, in some not insubstantial or immaterial way, to the injury that the plaintiff sustained...

(iii) The Court found that the normal rules of causation are to be applied to medical negligence matters and can further find that causation can be established even in situations where the death occurs due to a natural condition, but the negligent act accelerates that death.

(1) The Court cited Benhaim v St-Germain, 2016 SC 48 and noted that the "ordinary rules of causation apply to medical negligence" matters but those traditional principles are not to be applied in "an overly rigid matter".

[79] ...Because scientific causation and factual causation for legal purposes are two different things, causation need not be proven with scientific or medical certainty.

(a) The Court also found that causation can be established where a death results from something that could be reasonably foreseen as resulting from a defendant's negligence, as that negligence would have contributed to the death.

(2) In a medical context, the Court noted that causation can be established where there is a clear relationship between a doctor's negligence and the progression of a deceased's disease regardless if the disease itself was terminal notwithstanding the negligent acts. In short, "a death accelerated is a death caused."

(a) The Court cited Paniccia Estate v Toal, 2012 ABCA 397, wherein that court found causation was established notwithstanding the deceased having a terminal disease, as the negligent act resulted in the shortening of the deceased's life:

[85] ...In short, Shelley J. concluded, based on the evidence before her, that, if Mr. Paniccia had received non-negligent treatment, his life would have been extended by six months. The fact Dr. Toal's negligence shortened Mr. Paniccia's life by six months meant there was sufficient connection between the negligence and the death for the trial judge to conclude that Mr. Paniccia's death was "caused by" the negligence on a "but for" basis.

[86] ..."[N]egligence which reduces another person's life expectancy "to a significant or beyond a de minimis degree" can be said to have "caused" that person's death.

(b) The Court further cited Saint John Regional Hospital v Comeau, 2001 NBCA 113 to support the proposition that "the causal connection necessary to ground liability under the FAA can be established in medical negligence situations even where death results from a natural disease, illness or condition"

(e) On considering the plain wording of the FAA, its legislative history and the jurisprudential treatment of it in medical negligence contexts, the Court concluded that the Chambers judge erred in his interpretation and s. 3(1) FAA should have been interpreted as follows:

[92] As I have explained, the scheme and purpose of the FAA is to provide the surviving family members of someone who has died from the wrongful act, neglect or default of another with a method to seek compensation for the deceased person's death. The FAA, like all fatal accident legislation, is meant to overcome the harshness of old common law rules that essentially put tortfeasors in a better position if their negligent or wrongful conduct killed another person rather than merely injuring them.

[93] The words "caused by" in s. 3(1) connote a legal meaning, not a scientific meaning. Where the claim against the defendant is framed in tort, the causation requirement in s. 3(1) must be interpreted in a way that is consistent with normal tort law principles. Accordingly, the question of whether a person's death was "caused by such wrongful act, neglect or default" will fall to be determined on a basis of applying the "but for" test of causation in all cases except for those rare instances, as set out in Clements, where the "material contribution" test properly applies.

[94] The "but for" test does not require a plaintiff to prove that the defendant's negligence was the sole, or even a direct, cause of death. What it requires is that the negligence in issue contributed to the death in some way that demonstrates a substantial connection between the defendant's conduct and the death of the deceased. Whether such a substantial connection is established in cases like this one, where the deceased ultimately dies from a terminal illness, will depend on the evidence. The necessary causal connection will not be established in every case in which the alleged negligence of a doctor merely accelerates a patient's death rather than directly causing it, but in some cases it may. It will, in each case, be a matter for the trier of fact to determine based on the evidence adduced at trial.

The Court found that the Chambers judge erred in dismissing Mrs. Stacey's claim in its entirety due to his incorrect interpretation of s. 3(1) of the FAA.

[96] The Chambers judge's decision to entirely dismiss Mrs. Stacey's claim was tainted by this error in interpretation. By that, I mean the Chamber judge's erroneous conclusion on the legal question led him to effectively resolve the crucial factual question relating to causation in the absence of evidence. This, in my view, was a reversible error.

Commentary

The applicable section of the Alberta Fatal Accidents Act, RSA 2000, c F-8 is:

2 When the death of a person has been caused by a wrongful act, neglect or default that would, if death had not ensued, have entitled the injured party to maintain an action and recover damages, in each case the person who would have been liable if death had not ensued is liable to an action for damages notwithstanding the death of the party injured.

For ease of reference, the pertinent section of the FAA is as follows:

Both sections of these statutes are virtually identical with some minor grammatical differences, and the note by the Saskatchewan statute that the FAA applies even where the death is considered to be homicide. As such, the decision in this case could be easily applied to an Albertan matter with similar facts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Canada: Case Summary: Stacey Estate v Lukenchuk

Facts + Issues

HELD: Appeal allowed, action reinstated.

Commentary

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