762526 Alberta Ltd. et al. v. Bradshaw et al., (1998) 229 A.R. 66 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 04, 1998
• Citations: (1998), 229 A.R. 66 (QBM)

762526 Alta. Ltd. v. Bradshaw (1998), 229 A.R. 66 (QBM)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. SE.090

762526 Alberta Ltd. and 762526 Alberta Ltd., carrying on business as Kaos and Klara Shvartsman and Michael Shvartsman (plaintiffs) v. Michael Bradshaw, Glen Behiels, Kelly Gordon, John Lindsay, Constable John Doe 1, Constable John Doe 2, Constable John Doe 3, Constable John Doe 4, Constable John Doe 5, Constable John Doe 6, Constable John Doe 7 and City of Edmonton (defendants)

(Action No. 9803-05236)

Indexed As: 762526 Alberta Ltd. et al. v. Bradshaw et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Quinn, Master in Chambers

September 4, 1998.

Summary:

The plaintiff brought a tort action against a number of policemen (including Constables John Doe 1 to 7), the chief of police, an employee of the Edmonton Police Service and the City of Edmonton. The City of Edmon­ton applied for an order striking out the statement of claim as against it on the ground that no cause of action against the City was disclosed. Four named defendants also applied for an order striking out the statement of claim as against Constables John Doe 1 to 7 and an order striking the references to the John Doe defendants in various portions of the state­ment of claim.

A Master of the Alberta Court of Queen's Bench struck out the statement of claim as against the City of Edmonton. The Master declined to strike out the John Does and those portions of the statement of claim pertaining to them. The Master was of the view that it was best to leave the matter as it stood until the plaintiffs applied to substitute a named defendant for a John Doe.

Municipal Law - Topic 1761

Liability of municipalities - Torts - Gen­eral - [See Police - Topic 5003 ].

Police - Topic 5003

Actions against police - Actions against municipality for actions by police officer - The plaintiff brought a tort action against a number of policemen, the chief of police, an employee of the Edmonton Police Service and the City of Edmonton - The City applied to strike out the statement of claim as against it on the ground that no cause of action was disclosed - A Master of the Alberta Court of Queen's Bench struck out the statement of claim as against the City - The only allegations against the City were that it had assumed responsibil­ity for and had established a municipal police service under the Police Act - That did not disclose a cause of action against the City - While the Police Act stated that City Council was to pay any damages and costs awarded against the chief of police, it did not say that a municipality was liable for the torts of police officers - See para­graphs 3 to 10.

Practice - Topic 575

Parties - Persons unknown or not named - "John Doe" - Use of - The plaintiff brought a tort action against a number of policemen (including Constables John Doe 1 to 7), the chief of police, an employee of the Edmonton Police Service and the City of Edmonton - Four named defendants applied to strike out the statement of claim as against Constables John Doe 1 to 7 and to strike the references to the John Doe defendants in various portions of the state­ment of claim - The defendants submitted that the pleadings did not state particulars of the allegations against the John Doe defendants and the test for misnomer was not satisfied - A Master of the Alberta Court of Queen's Bench declined to strike out the John Does and those portions of the statement of claim pertaining to them -The Master was of the view that it was best to leave the matter until the plaintiffs applied to substitute a named defendant for a John Doe - See paragraphs 11 to 19.

Cases Noticed:

Caratozzolo v. Murdock, Ewatski and Edmonton (City) (1982), 47 A.R. 394 (Q.B.), refd to. [para. 6].

Davies v. Elsby Brothers Ltd., [1961] 1 W.L.R. 170 (C.A.), refd to. [para. 12].

Nagy v. Phillips, [1996] 8 W.W.R. 681; 187 A.R. 97; 127 W.A.C. 97 (C.A.), refd to. [para. 18].

Brochner v. MacDonald et al. (1989), 98 A.R. 361 (C.A.), refd to. [para. 18].

Counsel:

G.A. Akers (Nicholl and Akers), for the plaintiffs;

Kim Fallis-Howell (City of Edmonton Law Branch), for the City of Edmonton.

These applications were heard before Quinn, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on September 4, 1998.