McGillivary v. New Brunswick

• Jurisdiction: New Brunswick
• Court: Court of Appeal (New Brunswick)
• Judge: Rice, Ryan and Turnbull, JJ.A.
• Citation: (1994), 149 N.B.R.(2d) 311 (CA),1994 CanLII 4465 (NB CA),149 NBR (2d) 311,116 DLR (4th) 104,92 CCC (3d) 187,[1994] NBJ No 265 (QL),381 APR 3
• Date: 15 March 1994

McGillivary v. N.B. (1994), 149 N.B.R.(2d) 311 (CA);

    149 R.N.-B.(2e) 311; 381 A.P.R. 311

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Pauline McGillivary (plaintiff/appellant) v. The Province of New Brunswick (defendant/respondent)

(346/93/CA)

Indexed As: McGillivary v. New Brunswick

New Brunswick Court of Appeal

Rice, Ryan and Turnbull, JJ.A.

June 22, 1994.

Summary:

The plaintiff was charged with second degree murder, committed to stand trial and released on bail after several weeks. The Crown withdrew the charge before trial. The plain­tiff sued the provincial Crown, claiming the negligence of its employees and agents violated her s. 7 Charter right to liberty in a manner not in accordance with the principles of fundamen­tal justice. The plaintiff sought damages under s. 24 of the Charter. Pursuant to rule 23.01(1)(a), two preliminary ques­tions were referred for determination: (1) whether ss. 2 and 4 of the Proceedings Against the Crown Act provided a complete or partial defence to the action and (2) whether Crown immunity at common law provided a com­plete or partial defence.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 140 N.B.R.(2d) 365; 358 A.P.R. 365, answered the first question affirmatively and found it unnec­essary to answer the second. The plaintiff appealed.

The New Brunswick Court of Appeal dismissed the appeal, holding that the plain­tiff's claim failed because the plaintiff's statement of claim did not disclose a reason­able cause of action.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - The plaintiff was charged with second degree murder, committed to stand trial and released on bail after several weeks - The charge was withdrawn before trial - The plaintiff sued the provincial Crown for damages under s. 24 of the Charter, alleg­ing that Crown agents and employees deprived her of liberty contrary to the principles of fundamental justice (Charter, s. 7) - The New Brunswick Court of Appeal affirmed that the claim against the province should be dismissed for failure to disclose a reasonable cause of action - The court held that the plaintiff's state­ment of claim failed to disclose any act which would give rise to a tort, constitu­tional or otherwise, committed by the province.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See Civil Rights - Topic 686 ].

Civil Rights - Topic 8589

Canadian Charter of Rights and Freedoms - Practice - Pleadings - [See Civil Rights - Topic 686 ].

Cases Noticed:

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 8].

Prete v. Ontario et al. (1993), 68 O.A.C. 1; 18 C.C.L.T.(2d) 54 (C.A.), refd to. [para. 8].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 11].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 6]; sect. 24 [para. 5]; sect. 32 [para. 9].

Proceedings Against the Crown Act, R.S.N.B. 1973, c. P-18, sect. 2(2)(e), sect. 4(6) [para. 3].

Rules of Court (N.B.), rule 23.01(1)(a) [para. 2].

Counsel:

Brian B. Doucet, for the appellant;

Gabriel Bourgeois, for the respondent.

This appeal was heard on March 15, 1994, before Rice, Ryan and Turnbull, JJ.A., of the New Brunswick Court of Appeal. The fol­lowing decision was delivered by Ryan, J.A., on June 22, 1994.