Herr et al. v. Herr, (1994) 160 A.R. 393 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 31, 1994
• Citations: (1994), 160 A.R. 393 (QBM)

Herr v. Herr (1994), 160 A.R. 393 (QBM)

MLB headnote and full text

Gordon J. Herr and Herr Ranches Ltd. (plaintiffs) v. Benjamin George Herr (defendant)

(File No. 8501-19732)

Indexed As: Herr et al. v. Herr

Alberta Court of Queen's Bench

Judicial District of Calgary

Waller, Master in Chambers

October 31, 1994.

Summary:

Herr, a passenger in a motor vehicle acci­dent, sustained severe personal injuries. The quantum of damages was agreed and Herr sought to compel payment from the admin­istrator of the Motor Vehicle Accident Claims Act.

A Master of the Alberta Court of Queen's Bench dismissed Herr's application.

Motor Vehicles - Topic 1488

Unsatisfied judgment fund - Actions against fund - Conditions precedent - Action against "all persons" - Herr was injured in a motor vehicle accident - Dam­ages were agreed upon - Herr sought to com­pel payment from the Motor Vehicle Acci­dent Claims Act Administra­tor - The ad­ministrator resisted, arguing that Herr did not sue all per­sons against whom he "might rea­sonab­ly be considered as having a cause of action" (in this case the registered owner of the vehicle) con­trary to s. 7(3)(c) of the Act - A Master of the Alberta Court of Queen's Bench, held that Herr did not comply with s. 7(3)(c) where the registered owner was a proper party to the action and dismissed the application.

Motor Vehicles - Topic 1488

Unsatisfied judgment fund - Actions against fund - Conditions precedent - Action against "all persons" - A Master of the Alberta Court of Queen's Bench dis­cussed s. 7(3)(c) of the Motor Vehicle Accident Claims Act which stipulates that a claimant under the Act must sue all persons against whom the claimant "might reasonably be considered as having a cause of action" - The Master stated that the purpose of s. 7(3)(c) "is to ensure that any potential source of indem­nity is realized before the public purse is attached" - The burden of proof in com­plying with the statute "rests with the party seeking pay­ment from the fund" - See paragraphs 2 to 9.

Cases Noticed:

Beier et al. v. Abells (Administrator of Sonmor Estate) and Sonmor (1984), 52 A.R. 198 (Q.B.), refd to. [para. 6].

Palsky v. Humphrey (1964), 48 W.W.R.(N.S.) 38 (S.C.C.), refd to. [para. 7].

Roessler v. Ontario (Minister of Transport) (1969), 4 D.L.R.(3d) 42 (Ont. C.A.), refd to. [para. 8].

Taylor et al. v. Nicholson et al. (1986), 76 N.B.R.(2d) 379; 192 A.P.R. 379 (C.A.), refd to. [para. 11].

Canada (Attorney General) v. Mason (1990), 104 N.B.R.(2d) 130; 261 A.P.R. 130 (T.D.), refd to. [para. 11].

Statutes Noticed:

Motor Vehicle Accident Claims Act, R.S.A. 1980, c. M-21, sect. 7(3)(c) [para. 2].

Highway Traffic Act, R.S.A. 1980, c. H-7, sect. 188(1)(b) [para. 6].

Counsel:

Thomas T. Taylor, for the applicant;

L. Darlene Groh, for the respondent.

This case was heard before Waller, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on October 31, 1994.