Gayton v Rinholm, 2016 ABCA 328

image added // republished // image added


[1]               The parties were invited to apply for advice and directions regarding an appeal. On July 22, 2016, Hall J dismissed Ms Gayton’s application for the appointment of publicly funded legal counsel and a publicly funded litigation representative. Ms Gayton filed a Notice of Appeal on August 22, 2016. An Appeal Record Digest was submitted for filing but was not accepted. Ms Gayton seeks a stay of the action pending the appeal of the Hall Order and an extension of time to file her materials in the appeal. The respondents ask that I strike the appeal.

[2]               The underlying action is for medical negligence. In 2009, Ms Gayton sued a number of physicians. Several physicians have had their claims summarily dismissed, but the action against Dr Boodoo and Dr Anand continues. The action has been case managed since November 2009. On October 23, 2014, after a court ordered medical assessment which found Ms Gayton not competent to carry on the litigation under the Adult Guardianship and Trustee Act, SA 2008 c A-4.2, Ms Gayton was ordered to have a litigation representative under Rule 2.11 of the Alberta Rules of Court, Alta Regs 124/2010. There was no appeal of that Order.

[3]               Ms Gayton had a litigation representative from May 15, 2015, to December 15, 2015. He was also a lawyer. Part of the cost of the litigation representative was paid by the respondents. Ms Gayton was represented by counsel early in the lawsuit and this was partially funded by Legal Aid.

[4]               From December 15, 2015 to July 22, 2016, Mr Crarer acted as Ms Gayton’s agent with a view to being appointed as her litigation representative provided he would be paid. Mr Crarer acted as Ms Gayton’s legal counsel for the purpose of the application before Hall J. Mr Crarer is no longer involved either as litigation representative or as counsel.

[5]               The matter is set for a 6 week trial commencing December 5, 2016.

[6]               Rule 2.11 (c) provides:

Unless otherwise ordered by the Court, the following individuals or estates must have a litigation representative to bring or defend an action or to continue or to participate in an action, or for an action to be brought or to be continued against them:

(c) an adult who, in respect of matters relating to a claim in an action, lacks capacity, as defined in the Adult Guardianship and Trusteeship Act, to make decisions;

[7]               The October 23, 2014 Order is clear. It was not appealed and has not been set aside. Rule 14.90(1)(b) permits a judge to strike any document, including a Notice of Appeal for non-compliance with a rule or a direction or order. In my view the rule can be read to include the October 23, 2014 Order.  Ms Gayton had no capacity to file the Notice of Appeal and I direct that it be struck.

[8]               The respondents ask that I dismiss the appeal on the basis that it has no merit. That application must be brought before a panel of the court:  Rule 14.74(c).

[9]               In conclusion, the Notice of Appeal is struck. As long as there is an order requiring that Ms Gayton have a litigation representative, there will be a direction that any further documents filed on behalf of Ms Gayton in this court, must be done by a litigation representative. I also direct that before any document is accepted for filing, there must be an order of the Court of Queen’s Bench which designates a particular individual as Ms Gayton’s litigation representative.

Application heard on October 18, 2016

Reasons filed at Calgary, Alberta

this 21st day of October, 2016

Rowbotham J.A.

Appearances:

Applicant Judy Gayton in Person

  1. Burnett and K. Stys

for Dr. Larry Elnar Rinholm and others

A.G.P. Shewchuk, Q.C.

for the Attorney General of Alberta

Citation: Gayton v Rinholm, 2016 ABCA 328 (CanLII), <http://canlii.ca/t/gv7nz>, retrieved on 2016-10-28
Advertisements

10 thoughts on “Gayton v Rinholm, 2016 ABCA 328

Add yours

  1. Thank you for bringing the Appeal court’s decision into the discussion Barb.
    There are 4 errors in the 1.5-page decision that I believe should be corrected in the public interest.
    The most important issue is that the appeal is alive- sitting in sini die. It is not doomed to fail and could have garnered me state funded counsel, which the dr’s enjoy courtesy the government’s 3-billion-dollar tax payer fund (not insurance) via the Canadian Medical Protective Associations (CMPA) that covers the costs of the defendants counsel. So while they have state funded counsel, I can’t even get legal aid or anyone to assist in trying this appeal that could have solved the problem. Our government is funding one side of the litigation against the public interest.
    Justice Rowbotham’s states:
    [8] The respondents ask that I dismiss the appeal on the basis that it has no merit. That application must be brought before a panel of the court: Rule 14.74(c).
    So although the NOTICE OF APPEAL was struck, but could be refiled. The APPEAL ITSELF has NOT been dismissed and the defense must bring an application before the AC panel to dismiss it.
    As such, I could also bring it forward to be properly heard. Because it is not doomed to fail, I could win. As such having refused to even provide me with the chance to do that before dismissing my case was a callous injustice.
    There was no way I could try this geometrically complex med mal case without counsel or my expert witness’s (who will NOT work for SRL) there was no way I could possibly win. I was set up to fail.
    If this decision is not appealed it will set a dangerous precedence for PWD and SRL alike where they are forced to try these cases themselves without an expert witness- when in fact if you do not have an expert witness in a med mal case, you cannot even go to trial – its over. Yet I was not only allowed to do so, I was in fact forced to do so under very disconcerting circumstances.

    Liked by 1 person

  2. Thanks for your comment Judy. I’m certainly no lawyer (thank you!) but, didn’t they cheat? I mean, did the lawyers on the other side follow all the rules of civil procedure? Before my 7th or 8th attempt to bring a motion, I made a spreadsheet of pages of failures to follow the rules, it was pages long, and that didn’t include the case management endorsement they didn’t follow though they had complete control over it, it left me with under 5 days to respond to the summary motions of 4 law firms. In Ontario we recently had a ruling in our court of appeal that says those people we are to call our friends (perverted isn’t it?) must follow the rules if they want to use them against Self-Represented Litigants, though not binding on your court of appeal, if a lawyer used it, you might get notice from your JUSTICE. https://barbkueber.wordpress.com/2016/07/13/sanzone-v-schechter-2016-onca-566/ and there was this one from our Superior court recently https://barbkueber.wordpress.com/2016/01/29/solomon-v-abughaduma-2015-onsc-7670-7670-canlii/ Did you get some help? barbkueber@gmail.com

    Like

  3. This is a little over my head Barb , but yes all they did is cheat and I wasn’t able to keep up with it all the way you did- good for you.
    Nothing I said ever matter, I wasted 7 years of ink and taxi fare and should have stayed in brain injury rehab. I will look at what you posted here. Thank you for trying to point me in the right direction. No – there was no help whatsoever. I had a break down in the Court and cried hysterically throughout my presentation and for 20 uncontrollably wailed in the bathroom for 20 minutes after. I am in no condition to address any of this abuse.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Create a free website or blog at WordPress.com.

Up ↑

%d bloggers like this: