L.A. KYLE 2005 SKQB 32 Q.B. A.D. 1999 No. 245 J.C.S.C. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: CECILE SCHMIDT APPLICANT (PLAINTIFF) and THE SOUTHWEST DISTRICT HEALTH BOARD, WHO NOW REPRESENTS THE FORMER WESTERN SENIOR CITIZENS’ HOME INC. BOARD by AMALGAMATION AGREEMENT dated June 1, 1996 and REGIONAL HEALTH AUTHORITY #3 and SASKATCHEWAN HOSPITAL ASSOCIATION and SASKATCHEWAN ASSOCIATION OF HEALTH ORGANIZATIONS RESPONDENT E. Holgate for the applicant R.A. Watson, Q.C. and L. Ferguson for the respondents Saskatchewan Hospital Association and Saskatchewan Association of Health Organizations Not represented the respondent, The Southwest District Health Board FIAT LAING J. January 17, 2005 [1] The applicant’s motion seeks to amend the statement of claim dated December 31, 1999, in which she alleges wrongful dismissal by her employer on January 10, 1994. The purpose of the requested amendments, apart from housekeeping amendments, is to join the Saskatchewan Association of Health Organizations (“S.A.H.O”) to the action. S.A.H.O. is the long-term disability insurer for members of the Saskatchewan Health Care Association whose employees are certified by the Saskatchewan Union of Nurses. The applicant seeks to make S.A.H.O. a party for the purpose of claiming from it a disability pension from the date of her termination until she turned 65 years old on July 29, 2000. [2] Counsel for the applicant takes the position that the limitation period can be waived pursuant to s. 30 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01. He acknowledges that before s. 30 is applicable, it must be first established that the claim against the party to be added arose out of the same transaction or occurrence as the existing claim. Counsel then argues for very broad interpretation of the words “transaction” or “occurrence”. However, this is not matter being argued in the first instance. The Saskatchewan Court of Appeal has in the case of Fillion v. Wolverine, 2001 SKCA 30 (CanLII), (2001), 203 Sask. R. 288, indicated the terms “same transaction” or “occurrence” are to be given restrictive meaning. At para. 13, the Court noted: Properly construed and applied, the clause cannot accommodate the subsequent claim, bearing in mind that the section allows for an exception to limitation period and must be construed and applied accordingly. [3] As a starting point, the claims do not arise in the same time-frame, but are separated by a minimum of 120 days being the disability qualification period under the disability plan. minimum of 120 days having elapsed between the factual basis for one claim and the earliest the new claim could be brought makes it difficult to say they arise out of the same occurrence or transaction. The alleged wrongful termination by the employer did not cause the applicant’s health problems, at least not in the 120-day qualifying period. However, the fact is, there is no other legal or factual connection between the two claims. The applicant’s existing claim alleges breach of contract of employment. The claim proposed against S.A.H.O. alleges breach of contract of disability insurance. There is no legal connection. Similarly, there are no common facts relevant to either claim. The facts related to the breach of contract of employment are the applicant’s performance on the job and the actions of the employer. The facts relevant to the disability claim are, or would be, the applicant’s health commencing at least 120 days after her employment terminated. [4] As the applicant cannot bring herself within s. 30 of The Queen’s Bench Act, 1998, there is no basis for this Court to waive the limitation period. Having arrived at this conclusion, it is not necessary to address the other arguments advanced by the applicant or the respondent. The application to join S.A.H.O. as a party to the action is dismissed. [5] The amendments sought by the applicant had S.A.H.O. been joined as party are not allowed. These include reference to “[e]ach of the Defendants” in paras. (a)(x)-(xiii) inclusive, and para. (a)(xv). If the applicant wishes to substitute “the defendant” in each of the foregoing paragraphs, she may do so. The amendments sought by the applicant [6] There is obviously some duplication in some of the facts and allegations included in the “housekeeping” amendments with facts and allegations contained in the original statement of claim. However, as there has not been any opposition to these amendments, the same are allowed. [7] The respondent, S.A.H.O., is entitled to taxable costs against the applicant. [8] Order accordingly.
FIAT: The applicant's motion seeks to amend the statement of claim dated December 31, 1999 in which she alleges wrongful dismissal by her employer on January 10, 1994. The purpose of the amendment is to join the Saskatchewan Association of Health Organizations (SAHO) to the action. The applicant seeks to make SAHO a party for the purpose of claiming from it a disability pension from the date of her termination until she turned 65 on July 29, 2000. HELD: The application to join SAHO is dismissed. The claims do not arise in the same time frame but are separated by a minimum of 120 days being the disability period under the disability plan. There is no connection between the two claims. The existing claim alleges a breach of contract of employment. The claim proposed against SAHO alleges a breach of a contract of disability insurance. There are no common facts. The facts relevant to the breach of contract of employment are the applicant's performance on the job and the actions of the employer. The facts relevant to the disability claim are the applicant's health commencing at least 120 days after her employment terminated.