Brandner v. Alberta (Solicitor General and Minister of Public Security) et al.,

JudgeHanebury,Nancy
Neutral Citation2014 ABQB 211
Citation2014 ABQB 211,(2014), 587 A.R. 144 (QBM),587 AR 144,(2014), 587 AR 144 (QBM),587 A.R. 144
Date01 April 2014
CourtCourt of Queen's Bench of Alberta (Canada)

Brandner v. Alta. (2014), 587 A.R. 144 (QBM)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AP.082

Paul Brandner (plaintiff) v. The Solicitor General and Minister of Public Security and Attorney General for Alberta, Peter Van Muyan and John Doe #1 (defendants)

(1201 10132; 2014 ABQB 211)

Indexed As: Brandner v. Alberta (Solicitor General and Minister of Public Security) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hanebury, Master

April 9, 2014.

Summary:

Brandner was allegedly speeding on a highway when he was stopped by a sheriff. The routine traffic stop ended with Brandner, who would not provide his name, being pepper sprayed, handcuffed and arrested. Criminal charges against Bradnner arising out of the incident were dismissed. Bradner brought a civil action. The claims related to: assault and battery; unlawful arrest and confinement; Charter breaches; improper investigation; and malicious prosecution. The Crown applied to summarily dismiss Brandner's civil claims on the basis that they were out of time. However, at the time of argument, the Crown also raised other arguments in relation to the merits of the claim. As proper notice had not been given, Brandner asked the court to consider only those grounds set out in the application.

A Master of the Alberta Court of Queen's Bench considered the summary dismissal application only on the basis that the claim had been filed out of time. The court held that, other than the claims for malicious prosecution and negligent investigation, the claims were out of time and were dismissed.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - Brandner was allegedly speeding on a highway when he was stopped by a sheriff - The routine traffic stop ended with Brandner, who would not provide his name, being pepper sprayed, handcuffed and arrested - Criminal charges against Brandner arising out of the incident were dismissed - Bradner brought a civil action - The claims related to: assault and battery; unlawful arrest and confinement; Charter breaches; improper investigation; and malicious prosecution - The Crown applied to summarily dismiss Brandner's civil claims on the basis that they were out of time - The statement of claim was filed more than two years after the arrest and exactly two years after the copy of disclosure from the Crown prosecutor's office, which included the in-car police video - A Master of the Alberta Court of Queen's Bench held that the question was whether Brandner knew or ought to have known more than two years before filing his claim that: he had been injured; who was responsible for his injury; and, whether it warranted bringing a proceeding (Limitations Act, s. 3(1)) - The court held that, other than the malicious prosecution and negligent investigation claims, the claims were out of time and were dismissed - Brandner had all of the information necessary to proceed with these claims when he was released from detention - See paragraphs 33 to 66.

Limitation of Actions - Topic 3210

Actions in tort - Trespass to the person - False arrest - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 3211

Actions in tort - Trespass to the person - False imprisonment - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 3212

Actions in tort - Trespass to the person - Assault and battery - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 3213

Actions in tort - Trespass to the person - Malicious prosecution - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Police - Topic 5285

Actions against police - Defences - Limitation of actions - [See Limitation of Actions - Topic 15 ].

Practice - Topic 3074

Applications and motions - Applications - Notice of - [See second Practice - Topic 5719 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Limitation of Actions - Topic 15 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - Brandner was allegedly speeding on a highway when he was stopped by Sheriff Van Muyen - The routine traffic stop ended with Brandner, who would not provide his name, being pepper sprayed, handcuffed and arrested - Criminal charges against Brandner arising out of the incident were dismissed - Brandner brought a civil action - The claims related to: assault and battery; unlawful arrest and confinement; Charter breaches; improper investigation; and malicious prosecution - The Crown applied to summarily dismiss Brandner's civil claims on the basis that they were out of time - However, at the time of argument, the Crown also raised arguments relating to the merits - Brandner asked the court to consider only those grounds set out in the application, as proper notice had not been given - A Master of the Alberta Court of Queen's Bench agreed - Under the heading "Grounds", paragraph 1 of the Notice of Application set out the nature of the claim and paragraph 2 stated that the claim was filed beyond the applicable limitation period - The supporting affidavit was not by Sheriff Van Muyen but the Superintendent of Sheriff Traffic Operations South - He swore that he believed that more than two years had passed since the incident and therefore there was no merit to the claim and he knew of no facts that would substantiate it - Rule 6.3(2)(b) required that the notice include the grounds - The grounds the applicant was relying upon to strike the two timely claims were not obvious to Brandner nor the court in either the application or the affidavit - Whether intentional or unintentional, ambush was not a tactic supported by the courts - See paragraphs 30 to 33.

Cases Noticed:

Terrigno v. Kretschmer et al., [2012] A.R. Uned. 826; 2012 CarswellAlta 2283; 2012 ABQB 750, refd to. [para. 32].

Windsor v. Canadian Pacific Railway Ltd. (2014), 572 A.R. 317; 609 W.A.C. 317; 2014 ABCA 108, refd to. [para. 35].

Yugraneft Corp. v. Rexx Management Corp., [2010] 1 S.C.R. 649; 401 N.R. 341; 482 A.R. 1; 490 W.A.C. 1; 2010 SCC 19, refd to. [para. 40].

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161, refd to. [para. 41].

Sztuczka v. Knebel (2012), 532 A.R. 245; 2012 ABQB 72 (Master), refd to. [para. 43].

Dickieson v. Dickieson, [2010] A.R. Uned. 216; 28 Alta. L.R.(5th) 310; 2010 ABQB 227, refd to. [para. 43].

Burtch v. Barnes Estate et al. (2006), 209 O.A.C. 219; 80 O.R.(3d) 365; 27 C.P.C.(6th) 199 (C.A.), refd to. [para. 43].

Waap v. Alberta et al., [2008] A.R. Uned. 604; 95 Alta. L.R.(4th) 167; 2008 ABQB 544, refd to. [para. 43].

Stobbe v. Paramount Investments Inc. et al. (2013), 566 A.R. 155; 597 W.A.C. 155; 2013 ABCA 384, refd to. [para. 43].

Nicholas v. McCarthy Tetrault et al., [2008] O.T.C. Uned. M41 (Sup. Ct.), affd. (2009), 254 O.A.C. 197; 2009 ONCA 692, leave to appeal denied (2010), 405 N.R. 400 (S.C.C.), refd to. [para. 43].

De Shazo v. Nations Energy Co. et al. (2005), 367 A.R. 267; 346 W.A.C. 267; 2005 ABCA 241, refd to. [para. 43].

Photinopoulos v. Photinopoulos et al. (1988), 92 A.R. 122; 1998 CanLII 165 (C.A.), refd to. [para. 43].

Braunwarth v. BMO Bank of Montreal, [2004] A.R. Uned. 786; 136 A.C.W.S.(3d) 140; 2004 ABQB 790, refd to. [para. 43].

Gayton v. Lacasse (2010), 482 A.R. 179; 490 W.A.C. 179; 2010 ABCA 123, refd to. [para. 43].

Boyd et al. v. Cook et al. (2013), 542 A.R. 160; 566 W.A.C. 160; 2013 ABCA 27, refd to. [para. 43].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 43].

Borchers v. Kulak et al. (2009), 479 A.R. 136 (Q.B.), refd to. [para. 43].

Sun Gro Horticulture Canada Ltd. v. Abe's Door Service Ltd. et al. (2006), 397 A.R. 282; 384 W.A.C. 282; 273 D.L.R.(4th) 295; 2006 ABCA 243, refd to. [para. 43].

Remenda v. Miles Davison LLP - see Remenda v. Davison et al.

Remenda v. Davison et al., 2008 CarswellAlta 929 (Q.B.), affd. [2008] A.R. Uned. 103; 2008 ABCA 251, refd to. [para. 43].

Mills v. Royal Bank of Canada et al. (2012), 524 A.R. 127; 545 W.A.C. 127; 2012 ABCA 75, refd to. [para. 43].

Stack v. Hildebrand et al. (2010), 477 A.R. 359; 483 W.A.C. 359; 2010 ABCA 108, refd to. [para. 43].

J.N. v. G.J.K. et al. (2004), 361 A.R. 177; 339 W.A.C. 177; 2004 ABCA 394, refd to. [para. 43].

Chopra v. Eaton (T.) Co. et al. (1999), 240 A.R. 201; 1999 ABQB 201, refd to. [para. 50].

Jones v. Sherwood, [1942] 1 K.B. 127, refd to. [para. 51].

Dix v. Canada (Attorney General) et al. (2002), 315 A.R. 1; 2002 ABQB 580, refd to. [para. 53].

Crampton v. Walton et al. (2005), 363 A.R. 216; 343 W.A.C. 216; 2005 ABCA 81, refd to. [para. 54].

Webster v. Edmonton Chief of Police et al. (2007), 401 A.R. 266; 391 A.R. 266; 2007 ABCA 23, refd to. [para. 54].

Can v. Calgary Chief of Police et al. (2013), 560 A.R. 202; 2013 ABQB 226, refd to. [para. 55].

Alexis v. Darnley et al. (2009), 259 O.A.C. 148; 100 O.R.(3d) 232; 2009 ONCA 847, refd to. [para. 63].

Counsel:

Nancy McCurdy (Alberta Justice), for the defendants/applicant;

Michael Bates (Ruttan Bates), for the plaintiff/respondent.

This application was heard on April 1, 2014, by Hanebury, Master, of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on April 9, 2014.

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5 practice notes
  • Barrie v Quickwrap Canada Ltd., 2018 ABPC 205
    • Canada
    • Provincial Court of Alberta (Canada)
    • September 5, 2018
    ...notice can be made.” [20] In rebuttal argument, the Defendant referred to Brandner v Alberta (Justice & Solicitor General), 2014 ABQB 211, at paragraph 48, arguing that the Court is required to consider “whether the information provided was new information or an affirmation of existing ......
  • Bennett v Treit,
    • Canada
    • Court of King's Bench of Alberta (Canada)
    • June 8, 2023
    ...to civil actions arising from Charter breaches: Nagy v Phillips, 1996 ABCA 280; Brandner v Alberta (Justice and Solicitor General), 2014 ABQB 211. 101 Bennett was in possession of all Crown disclosure by December 9, 2015. This included the Informations to Obtain various warrants which were ......
  • Prothero v Dhaliwal, 2021 ABQB 1009
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 16, 2021
    ...must prove for a determination of liability on the part of Dhaliwal, I note that in Brander v Alberta (Justice & Solicitor General), 2014 ABQB 211 Master Hanebury stated (at paragraph An assault is an attempt at battery.... Battery occurs when a person intentionally causes a harmful or ......
  • Clover Four Farm Ltd. v Alberta Turkey Producers, 2018 ABPC 103
    • Canada
    • Alberta Provincial Court of Alberta (Canada)
    • May 9, 2018
    ...involving what is referred to as the ‘discoverability’ of those elements, was conveniently summarized by the court in Brandner v Alberta, 2014 ABQB 211 in the following terms (at 1. The determination of whether a limitation has expired is a mixed question of law and fact and contains both a......
  • Request a trial to view additional results
5 cases
  • Barrie v Quickwrap Canada Ltd., 2018 ABPC 205
    • Canada
    • Provincial Court of Alberta (Canada)
    • September 5, 2018
    ...notice can be made.” [20] In rebuttal argument, the Defendant referred to Brandner v Alberta (Justice & Solicitor General), 2014 ABQB 211, at paragraph 48, arguing that the Court is required to consider “whether the information provided was new information or an affirmation of existing ......
  • Bennett v Treit,
    • Canada
    • Court of King's Bench of Alberta (Canada)
    • June 8, 2023
    ...to civil actions arising from Charter breaches: Nagy v Phillips, 1996 ABCA 280; Brandner v Alberta (Justice and Solicitor General), 2014 ABQB 211. 101 Bennett was in possession of all Crown disclosure by December 9, 2015. This included the Informations to Obtain various warrants which were ......
  • Prothero v Dhaliwal, 2021 ABQB 1009
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 16, 2021
    ...must prove for a determination of liability on the part of Dhaliwal, I note that in Brander v Alberta (Justice & Solicitor General), 2014 ABQB 211 Master Hanebury stated (at paragraph An assault is an attempt at battery.... Battery occurs when a person intentionally causes a harmful or ......
  • Clover Four Farm Ltd. v Alberta Turkey Producers, 2018 ABPC 103
    • Canada
    • Alberta Provincial Court of Alberta (Canada)
    • May 9, 2018
    ...involving what is referred to as the ‘discoverability’ of those elements, was conveniently summarized by the court in Brandner v Alberta, 2014 ABQB 211 in the following terms (at 1. The determination of whether a limitation has expired is a mixed question of law and fact and contains both a......
  • Request a trial to view additional results

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