J. _Q.B. A.D. 1994 No. 3760 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: DIANE SORON and ALBERT LAVOIE, R. LORNE JAMIESON, GREGORY N. BAINS, SHEILA P. WHELAN, DENNIS P. LOEWEN and BRIAN McHOLM, being partners in the practice of law under the firm name of JAMIESON BAINS DEFENDANTS Mr. Timothy E. Turple for the plaintiff (respondent) Mr. Thomas J. Schonhoffer for the defendants (applicants) FIAT WRIGHT J. August 11, 1995 have good deal of sympathy for the applicants in this case. The application raises number of problems. The plaintiff has not explained why she waited for five years after she attained majority before consulting counsel, except to say that she did not believe she could do anything as result of the original advice she and her mother received from Judge Lavoie. That very significant delay is factor that must consider, but only one. Undoubtedly there will be some prejudice to the applicants by virtue of having destroyed their files, the death of Dr. Leakos and the diminution of memories over period of 11 years. Those factors must be weighed, however, against the interests of the plaintiff. am influenced by number of factors. Firstly, the notes produced from SGI of conversations with Ms. Mak, solicitor in Judge Lavoie's office, indicate that the Lavoie firm was continuing to represent the plaintiff some six months after the initial consultation, and were preparing to file statement of claim. That evidence flies in the face of Judge Lavoie's statement that he refused to act. Perhaps he was unaware Ms. Mak continued the firm's involvement. The death of Dr. Leakos is matter beyond the control of the parties. But one would expect there would be hospital, patient and SHSP records of treatment. There is no indication as to who took over Dr. Leakos' files or whether he practised with others who may have his case histories and patient records. It is difficult to believe that there are not medical records available from some source which would outline the scope of the treatment and his diagnosis and prognosis for the plaintiff. The applicants' decision to destroy their office files is understandable, but do see merit in Mr. Turple's argument that the decision did not recognize the contingent element involved in the situation of an infant plaintiff. was particularly struck by the comments contained in Brosseau v. Children's Aid Society of the District of Sudbury Inc. et al (1986), C.P.C. (2d) 312. It repeats an earlier statementthat infants with bona fide causes are privileged suitors. So, an infant "should not be visited with the sins of the nextfriends and litigation guardians who preceded him in the sameaction." agree the plaintiff's claims face some serious obstacles: (1)The plaintiff was guest passenger; (2)The plaintiff's mother rear-ended slow- moving vehicle in very adverse weather conditions. It is not my duty, however, to pass on these issues. The application is dismissed, but costs arereserved to the trial judge.
FIAT The Defendants were consulted by the Plaintiff and her mother 11 years earlier with respect to commencing an action for personal injuries arising out of a motor vehicle accident. The Plaintiff was only 12 at the time. No action was commenced with the result that the original action was now statute-barred. She waited 5 years after she attained the age of majority before taking this action against the Defendants. The Defendants applied to stay the action on the basis that they had never been retained. HELD: Application dismissed. Infants with bona fide causes are privileged suitors. An infant 'should not be visited with the sins of the next friends and litigation guardians who preceded him/her in the same action'.