The time to sue may be have already passed

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PRO BONO

Dear Tuma:

I had my eyes enucleated three or four years ago and have been experiencing excruciating pain ever since. I am getting the feeling that the doctor who did the surgery must have made a mistake. Is it too late to do anything? I'm getting really depressed because not only do I have to deal with my blindness but also the pain in my eye. I feel as though I'm getting the run around from this doctor.

Seeing Red

Dear Seeing Red:

You need to think about a few issues here. The first is whether the time to sue has passed. Usually, you have up to two years after an injury to sue. The period for medical negligence may be longer (up to six years). You need to look into when the clock started ticking. A lawyer will be able to tell you what the limitation periods are in your province.

Another issue is whether you were properly informed of the risks, complications or any potential side effects of the surgery. Did you sign a consent form?

The question of whether the eye doctor caused the blindness and pain will come up in any lawsuit. You will need to prove the doctor, not outside forces, is at fault here. There is also the issue of mitigation. The court will look at whether you have mitigated the damages by following up with further treatments or consultations with another doctor.

Lastly, if you feel that the conduct of the doctor was not up to standard, you can launch a compliant against that doctor through the provincial medical association.

Dear Tuma:

I am writing to you in regards to civic annulments. How does one go about filing for one, what is the cost of one and is it true that if one is filed for they can take away the status of a non-Native person who married a Native person?

The love is gone

Dear Love:

An annulment differs from a divorce in that a divorce terminates a legal marriage whereas an annulment establishes that a marriage never existed. The requirements for obtaining an annulment are different from province to province. Furthermore, a religious annulment is also different from a civic annulment because the requirements needed for a religious annulment are also different.

You need to prove that the marriage was not legal or could have not been legal under the law. For example, the parents of an underage child did not give permission or that two siblings married each other without knowing that they were siblings until after the marriage. The other way is to show that all of the requirements of a valid marriage were not followed, i.e. the marriage was not consummated or that there was no one who had the legal authority to officiate at the ceremony.

As for the costs, I would think it would be the same as for a divorce. It would depend on a number of factors, such as whether the other side was opposed, if children were involved or property or other assets were involved.

Now the interesting question is about whether a non-Native who had obtained status would keep it after a civic annulment. I would think that since the marriage was not valid in the first place, a person who obtained status through marriage would not be able to keep it, as they never obtained it legally in the first place. Remember, the marriage would have had to occur before 1985. This is when Bill C-31 was passed and the practice of obtaining status through marriage became no longer available.

This column is not intended to provide legal advice but rather highlight situations where you should consult with a lawyer. Tuma Young is currently studying for a PhD in law at the University of British Columbia and questions can be sent to him via e-mail at: puoin@telus.net