Statutes – Interpretation – Medical Professions Act, 1981, Section 72
Statutes – Interpretation – Fatal Accidents Act, Section 6
The wife (T.L.) and son (J.L.) of a man who died in February 5, 2005 commenced their action on January 24, 2007 against two doctors, whom they alleged caused his death through their negligence. The action was brought within the two-year limitation period prescribed by s. 6 of The Fatal Accidents Act (FAA). The doctors argued that the plaintiffs were barred by s. 72 of The Medical Professions Act, 1981 (MPA) because the action was not commenced within 24 months of the dates at which each of them had last treated the deceased. The reform of limitations in the province was affected by the coming into force of The Limitations Act (LA) on May 1, 2005 that repealed s. 72 of the MPA and substantially amended s. 6 of the FAA. The judge agreed that T.L.’s action was out of time and dismissed her claim. With respect to J.L.’s claim, the judge found that because he had been an infant at the relevant times, he could continue with his action (see: 2017 SKQB 389). T.L. appealed the dismissal and the doctors cross-appealed on the basis that the judge should also have dismissed J.L.’s claim. The issues on appeal were: 1) whether the judge erred by concluding that J.L.’s claim was not statute-barred. The judge determined the question by relying upon the law as it existed prior to May 1, 2005 and based his conclusion on s. 6 of The Limitations of Actions Act (LAA) postponing the operation of s. 72 of the MPA while J.L. was an infant; 2) whether the pre-or post-May 1, 2005 limitations law applied to T.L.’s claim. The judge held that she had discovered her claim prior to May 1, 2005, based upon the evidence and relying upon the statutory presumption created by s. 6(2) of the LA; and 3) whether the judge erred by concluding that T.L. was required to commence her action on or before the two anniversary dates on which her husband last received medical services from them. The judge found that there was a conflict between s. 6 of the FAA and s. 72 of the MPA and resolved it in favor of the MPA’s limitation period because it was more precisely relevant to the claim, based upon an implied exception utilizing the principle of generalia specialibus non derogant. This strategy supports the presumption of coherence, that contradictions between provisions in legislation cannot be tolerated.
HELD: The appeal was allowed, and the cross-appeal dismissed. The court found concerning each issue that: 1) the judge had not erred in finding the claim was not statute-barred. The presumption of coherence and the policy reasons that existed for postponing J.L.’s obligation to commence a lawsuit during his infancy correctly resulted in subjecting s. 72 of the MPA to s. 6 of the LAA; 2) the judge had not erred when he found that the evidence did not demonstrate that T.L. did not know any of the four matters listed in s. 6(1) of the LAA by February 5, 2005, or before May 1, 2005, and there was no basis to intervene in his determination that the pre-May 1, 2005 LAA applied in terms of assessing whether her claim was statute-barred; and 3) the judge erred by considering the MPA to be the more precisely relevant legislation. After reviewing the history of the FAA, the court observed that neither the MPA nor the FAA could be said to be more precisely relevant. Rather than regarding the provisions of the legislation to conflict, it was possible to interpret them in a way that achieved harmony with the scheme of both Acts. The appeal court read s. 72 of the MPA as subject to s. 6 of the FAA so that the former did not apply to a claim for damages under the FAA otherwise commenced within the time provided for by s. 6. This interpretation was consistent with the policy and intent of s. 6 and only derogated from, but did not destroy, the purpose of s. 72 of the MPA, allowing doctors to continue to enjoy the protection of a limitation period.