Patient’s battery and contractual breach claims concerning liposuction did not succeed
In a proceeding arising from a patient’s allegation that a plastic surgeon extended a liposuction beyond the agreed hip area to her buttocks, the Alberta Court of Appeal dismissed the patient’s appeal against the denial of her stay application.
In Carbone v Whidden, 2026 ABCA 133, the doctor performed the plastic surgery on the appellant patient on Mar. 13, 2003. The appellant was unsatisfied with the outcome.
In 2004, the appellant claimed damages from the respondents – the doctor and his professional corporation. She asserted negligence, battery, and contractual breach.
Specifically, the appellant alleged that the doctor negligently performed the surgery because he knew or should have known that she was not an appropriate candidate for plastic surgery.
In July 2014, after lengthy litigation, the court dismissed the appellant’s action and awarded the respondents $149,226.49 in costs. In late 2015, the appellant paid $50,000 of the cost award to remove a writ against her property title. She paid nothing further.
The respondents applied to renew the judgment, then scheduled to expire on July 29, 2024, under s. 11 of Alberta’s Limitations Act, 2000.
On Feb. 10, 2025, an applications judge granted the respondents’ application in the amount of $115,132, including interest until July 28, 2024. On Mar. 7, 2025, the judge awarded the respondents $4,185 in application costs, including throw-away costs due to multiple adjournments.
The appellant appealed the new judgment and the cost orders. She sought a stay of the orders until the determination of her appeal, as well as punitive costs of $25,000.
According to the appellant, both before and after the issuance of the new judgment, the respondents had taken enforcement steps that were contemptuous of her stay application, which constituted irreparable harm.
The appellant argued that a writ of enforcement and a Personal Property Registry report were invalid under ss. 186(e) and (f) of Alberta’s Business Corporations Act, 2000, as they had been filed under the respondent corporation’s pre-amalgamation name.
The chambers judge dismissed the appellant’s stay application, her request for punitive costs, and her arguments regarding the respondent corporation’s amalgamation.
The chambers judge determined that the appellant failed to meet any of the three parts of the test for a stay in RJR-MacDonald Inc v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311. The appellant appealed the chambers judge’s decision.
Appeal of denied stay dismissed
The Court of Appeal of Alberta addressed the test for a stay in RJR-MacDonald. First, the appeal court ruled that the chambers judge did not improperly apply the serious issue step, did not inappropriately conduct an “in-depth merits-based” review, and did not engage in flawed reasoning.
The appeal court added that the chambers judge, who could preliminarily assess the merits to determine whether the appeal had a reasonable prospect of success, reasonably saw no such prospect.
The appeal court found that the chambers judge was entitled to make the following findings, which responded directly to the appellant’s arguments:
- The appellant could not use the respondents’ renewal application to relitigate the trial costs award
- No evidence showed the satisfaction, intentional delay, or inflation of the judgment
- The applications judge properly exercised her discretion to order costs for the renewal application
Next, the appeal court saw no error in the chambers judge’s analysis for irreparable harm or for the balance of convenience.
The appeal court explained that the chambers judge neither ignored the appellant’s assertion that the respondents had falsely reported a judgment to the credit bureau nor improperly focused on harm that had already occurred rather than the harm of denying a stay.
The appeal court saw no support for the appellant’s argument that the chambers judge determined that the balance of convenience favoured the respondents because they had legal counsel.
The appeal court deferred to the chambers judge’s findings that the appellant provided no evidence, failed to show that refusing a stay would irreparably harm her, and failed to establish any attempts at enforcement of the judgment against her.
Lastly, the appeal court saw no error in the chambers judge’s dismissal of the appellant’s request for punitive costs or in his finding that ss. 186(e) and (f) preserved an amalgamated corporation’s judgments both for and against it and transferred them to such corporation.
