Herr et al. v. Herr, (1998) 233 A.R. 184 (QB)

• Judge: Romaine, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 17, 1998
• Citations: (1998), 233 A.R. 184 (QB)

Herr v. Herr (1998), 233 A.R. 184 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. JA.006

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

(8501-19732)

Indexed As: Herr et al. v. Herr

Alberta Court of Queen's Bench

Judicial District of Calgary

Romaine, J.

December 17, 1998.

Summary:

Herr, a passenger in a motor vehicle acci­dent, sustained severe personal injuries. The quantum of damages was agreed upon 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, in a decision reported 160 A.R. 393, dismissed Herr's application. Herr appealed.

The Alberta Court of Queen's Bench dis­missed the appeal.

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 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 - The Alberta Court of Queen's Bench affirmed the Master's de­cision.

Cases Noticed:

Roessler v. Ontario (Minister of Transport) (1969), 4 D.L.R.(3d) 42 (Ont. C.A.), refd to. [para. 5].

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

Palsky v. Humphrey (1964), 48 W.W.R.(N.S.) 38 (S.C.C.), refd to. [para. 6].

Besse v. Simpson and Verrall (1985), 67 B.C.L.R. 122 (C.A.), refd to. [para. 14].

Cooper et al. v. Temos et al., [1956] O.W.N. 518 (C.A.), refd to. [para. 15].

Naccarato v. Quinn, [1994] M.V.R.(3d) 65 (Ont. Gen. Div.), refd to. [para. 15].

Dunlop v. Brown et al., [1986] 40 M.V.R. 1 (Ont. Dist. Ct.), refd to. [para. 15].

Statutes Noticed:

Motor Vehicle Accident Claims Act, R.S.A. 1980, c. M-21, sect. 7(3)(c) [para. 4].

Counsel:

John H. Wilson (Wilson Laycraft), for the plaintiffs;

L. Darlene Acton (Alberta Justice, Civil Law Branch), for the Administrator of the Motor Vehicle Accident Claims Act.

This appeal was heard before Romaine, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on December 17, 1998.