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[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
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