Mallett v. McCaskill, (2008) 233 Man.R.(2d) 275 (QB)

• Judge: Schulman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 28, 2008
• Jurisdiction: Manitoba
• Citations: (2008), 233 Man.R.(2d) 275 (QB);2008 MBQB 286

Mallett v. McCaskill (2008), 233 Man.R.(2d) 275 (QB)

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. NO.011

Sharon Mallett (plaintiff) v. Keith McCaskill (defendant)

(CI 08-01-57584; 2008 MBQB 286)

Indexed As: Mallett v. McCaskill

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

October 28, 2008.

Summary:

The police entered Mallett's home without a warrant on two separate occasions in response to 911 calls from outside the home from two different people. Mallett brought an action, alleging assaults, trespass and breaches of her rights under the Charter and the Privacy Act. She sought an interim injunction to restrain the police from entering her property without her prior consent or a court order.

The Manitoba Court of Queen's Bench dismissed the application.

Injunctions - Topic 1606

Interlocutory or interim injunctions - General principles - Balance of convenience - Police entered Mallett's home without a warrant on two separate occasions in response to 911 calls from outside the home from two different people - Mallett brought an action, alleging assaults, trespass and breaches of her rights under the Charter and the Privacy Act - She sought an interim injunction to restrain the police from entering her property without her prior consent or a court order - The Manitoba Court of Queen's Bench dismissed the application - While Mallett had established serious issues of whether the first entry was legal and whether she was assaulted in the two incidents, she failed to establish that the issues related to the matters that gave rise to a need for the injunction - The officers involved in each incident were different - There was no basis on which to find a reasonable concern for Mallett's safety - Further, no irreparable harm would be caused if the injunction was refused - There was no evidence that any police officer or civilian was targeting Mallett - An award of damages was an adequate remedy if she succeeded in her action - Finally, the balance of convenience favoured the uninterrupted right and duty of police to enter Mallett's home in the authorized circumstances for her own protection.

Injunctions - Topic 1610

Interlocutory or interim injunctions - General principles - Circumstances when injunction will not be granted - [See Injunctions - Topic 1606 ].

Injunctions - Topic 1616

Interlocutory or interim injunctions - General principles - Arguable issues of law involved or serious question to be tried - [See Injunctions - Topic 1606 ].

Injunctions - Topic 1743

Interlocutory or interim injunctions - Sufficiency of damages in lieu of injunction - What constitutes adequacy or sufficiency of damages - [See Injunctions - Topic 1606 ].

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - [See Injunctions - Topic 1606 ].

Police - Topic 2209

Duties - General duties - Duty to take preventive actions and investigate - [See Injunctions - Topic 1606 ].

Police - Topic 3108

Powers - Investigation - Power to enter private property - [See Injunctions - Topic 1606 ].

Cases Noticed:

R. v. Godoy (V.) (1999), 235 N.R. 134; 117 O.A.C. 127; 1999 CanLII 709 (S.C.C.), refd to. [para. 9].

R. v. Havelock (K.F.) (2004), 186 Man.R.(2d) 219; 2004 MBQB 189, refd to. [para. 10].

Pateman et al. v. Ross (1988), 68 Man.R.(2d) 181 (Q.B.), dist. [para. 12].

Québec (Sous-ministre du Revenu) et autres v. 143471 Canada Inc. et autres, [1994] 2 S.C.R. 339; 167 N.R. 321; 61 Q.A.C. 81, dist. [para. 13].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, appld. [para. 14].

Counsel:

R. Ian Histed, for the plaintiff;

Mark T. O'Neill, for the defendant.

This application was heard by Schulman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on October 28, 2008.