Murray v. Capital District Health Authority, (2015) 356 N.S.R.(2d) 239 (SC)

Judge:Boudreau, J.
Court:Supreme Court of Nova Scotia
Case Date:January 30, 2015
Jurisdiction:Nova Scotia
Citations:(2015), 356 N.S.R.(2d) 239 (SC);2015 NSSC 61
 
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Murray v. Health Authority (2015), 356 N.S.R.(2d) 239 (SC);

    1126 A.P.R. 239

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Temp. Cite: [2015] N.S.R.(2d) TBEd. FE.046

Mark Jason Murray (applicant) v. Capital District Health Authority, a body corporate carrying on business as the East Coast Forensic Hospital (respondent)

(Hfx. No. 422819; 2015 NSSC 61)

Indexed As: Murray v. Capital District Health Authority

Nova Scotia Supreme Court

Boudreau, J.

February 25, 2015.

Summary:

Thirty-three forensic psychiatry patients at the East Coast Forensic Hospital were strip-searched due to institutional concerns respecting illicit drugs and patient safety. There was one decision to search all 33 patients at one time on the basis of one set of facts. One of the patients (Murray) commenced an action for various heads of damages for breach of s. 8 of the Charter and the tort of intrusion upon seclusion. Murray applied to certify the proceeding as a class proceeding on behalf of all of the patients, with him to be appointed as the representative plaintiff.

The Nova Scotia Supreme Court allowed the application and certified the following common issues: "a) were class members all subjected to a strip search stemming from one order?; b) If the answer to (a) is yes, who ordered the strip search?; c) If the answer to (a) is yes , were there reasonable and probable grounds to order the one strip search of all class members?; d) If the answer to (a) is yes, and if the answer to (c) is no, can the defendant now justify the search of individual class members on the basis of individual considerations?; e) If s. 8 of the Charter was breached, are Charter damages a just and appropriate remedy?; f) What are the elements of Intrusion upon seclusion?; g) Did the decision to strip search the members of this class intrude on the seclusion of the class members privacy, as defined by the Court?".

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The Nova Scotia Supreme Court stated the following principles respecting the requirement that there be two or more persons who were the member of a class: "a) membership in the class should be determined by objective criteria that do not depend on the outcome of any substantial issue in the litigation; b) the class definition should bear a rational relationship to the common issues; c) the class must be bounded and not unlimited membership; d) it is not necessary to identify every, or even most of the class members at the certification stage; e) a proper class definition does not need to include only those persons whose claims will be successful; f) all class members need not have an equivalent likelihood of success. The defining aspect of class membership is an interest in the resolution of the proposed common issues; g) the class definition is the group to be bound by the result, including to the extent the claims fail." - See paragraph 45.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Thirty-three forensic psychiatry patients at the East Coast Forensic Hospital were strip-searched due to institutional concerns respecting illicit drugs and patient safety - There was one decision to search all 33 patients at one time on the basis of one set of facts - One of the patients (Murray) commenced an action for various heads of damages for breach of s. 8 of the Charter and the tort of intrusion upon seclusion (invasion of privacy) - Murray applied to certify the proceeding as a class proceeding on behalf of all of the patients, with him to be appointed as the representative plaintiff - The Nova Scotia Supreme Court allowed the application and certified the following common issues: "a) were class members all subjected to a strip search stemming from one order?; b) If the answer to (a) is yes, who ordered the strip search?; c) If the answer to (a) is yes , were there reasonable and probable grounds to order the one strip search of all class members?; d) If the answer to (a) is yes, and if the answer to (c) is no, can the defendant now justify the search of individual class members on the basis of individual considerations?; e) If s. 8 of the Charter was breached, are Charter damages a just and appropriate remedy?; f) What are the elements of Intrusion upon seclusion?; g) Did the decision to strip search the members of this class intrude on the seclusion of the class members privacy, as defined by the Court?" - The pleadings disclosed two causes of action and there was an identifiable class of two or more persons - Common issues were raised - A class proceeding was the preferable procedure to achieve a fair and efficient resolution - A class proceeding met the requirements of judicial economy, access to justice and "behaviour modification".

Torts - Topic 5500.3

Invasion of privacy (intrusion upon seclusion) - Searches and seizures - Strip searches - The Nova Scotia Supreme Court discussed the novel tort of intrusion upon seclusion, as recognized in Jones v. Tsige (Ont. C.A. 2012), which required the plaintiff to prove that "1. The privacy intruders conduct must be intentional; 2. the privacy intruder must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and 3. a reasonable person would regard the invasion is highly offensive causing distress, humiliation, or anguish." - See paragraphs 35 to 41.

Cases Noticed:

Taylor v. Wright Medical Technology Canada Ltd. et al. (2014), 342 N.S.R.(2d) 103; 1083 A.P.R. 103; 2014 NSSC 89, refd to. [para. 26].

Pro-Sys Consultants Ltd. v. Infineon Technologies AG et al. (2009), 277 B.C.A.C. 271; 469 W.A.C. 271; 2009 BCCA 503, refd to. [para. 26].

Taub v. Manufacturers Life Insurance Co. (1998), 40 O.R.(3d) 379 (Gen. Div.), affd. (1999), 42 O.R.(3d) 576 (Div. Ct.), refd to. [para. 27].

Hollick v. Metropolitan Toronto (Municipality) et al. (2011), 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 28].

Pro-Sys Consultants Ltd. et al. v. Microsoft Corp. et al. (2013), 450 N.R. 201; 345 B.C.A.C. 1; 589 W.A.C. 1; 2013 SCC 57, refd to. [para. 28].

Anderson v. Canada, 2010 NLCA 106, refd to. [para. 29].

Gay v. Regional Health Authority 7 et al. (2014), 421 N.B.R.(2d) 1; 1094 A.P.R. 1; 2014 NBCA 10, refd to. [para. 29].

MacQueen et al. v. Nova Scotia et al. (2013), 338 N.S.R.(2d) 133; 1071 A.P.R. 133; 2013 NSCA 143, refd to. [para. 31].

Sun-Rype Products Ltd. et al. v. Archer Daniels Midland Co. et al., [2013] 3 S.C.R. 545; 450 N.R. 287; 345 B.C.A.C. 87; 589 W.A.C. 87, refd to. [para. 32].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 32].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Ward v. Vancouver (City) et al. (2010), 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 34].

Jones v. Tsige (2012), 287 O.A.C. 56; 2012 ONCA 32, refd to. [para. 37].

Grosse v. Purvis, [2013] Q.D.C. 151 (Aust.), refd to. [para. 39].

Fresco v. Canadian Imperial Bank of Commerce (2010), 267 O.A.C. 317; 2010 ONSC 4724 (Div. Ct.), refd to. [para. 41].

Edwards v. Law Society of Upper Canada, [1995] O.J. No. 2900 (Gen. Div.), refd to. [para. 41].

Trout Point Lodge Ltd. et al. v. Handshoe et al. (2012), 320 N.S.R.(2d) 22; 1014 A.P.R. 22; 2012 NSSC 245, refd to. [para. 42].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al. (2001), 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 54].

Elwin et al. v. Nova Scotia Home for Colored Children et al. (2013), 339 N.S.R.(2d) 35; 1073 A.P.R. 35; 2013 NSSC 411, refd to. [para. 54].

Anderson v. Wilson, [1998] O.J. No. 671 (Div. Ct.), refd to. [para. 59].

Thorburn et al. v. British Columbia (Minister of Public Safety) et al. (2013), 346 B.C.A.C. 130; 592 W.A.C. 130; 2013 BCCA 480, dist. [para. 64].

R. v. Golden (I.V.) (2001), 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [para. 64].

Mazzei v. Director of Adult Forensic Services (B.C.) (2006), 228 B.C.A.C. 129; 376 W.A.C. 129; 2006 BCCA 321, refd to. [para. 66].

Good v. Toronto Police Services Board (2014), 321 O.A.C. 358; 2014 ONSC 4583 (Div. Ct.), refd to. [para. 70].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 74].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267, refd to. [para. 81].

Pearson v. Inco Ltd. et al. (2006), 205 O.A.C. 30; 78 O.R.(3d) 641 (C.A.), refd to. [para. 101].

Fischer et al. v. IG Investment Management Ltd. et al. (2013), 452 N.R. 80; 312 O.A.C. 128; 2013 SCC 69, refd to. [para. 103].

Statutes Noticed:

Class Proceedings Act, S.N.S. 2007, c. 28, sect. 2(e) [para. 56]; sect. 7(1) [para. 24]; sect. 7(2) [para. 98]; sect. 10 [para. 25].

Authors and Works Noticed:

Winkler, Perell, Kalajdzic and Warner, The Law of Class Actions in Canada (2014), p. 266 [para. 95].

Counsel:

Michael Dull, for the applicant;

Carman McCormick, Q.C., and Karen Bennett-Clayton, for the respondent.

This application was heard on January 30, 2015, at Halifax, N.S., before Boudreau, J., of the Nova Scotia Supreme Court, who delivered the following judgment on February 25, 2015.

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