Murray v. Capital District Health Authority, 2016 NSSC 141

• Judge: Boudreau, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 22, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSSC 141;(2016), 374 N.S.R.(2d) 169 (SC)

Murray v. Health Authority (2016), 374 N.S.R.(2d) 169 (SC);

    1178 A.P.R. 169

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JN.009

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

(Hfx No. 422819; 2016 NSSC 141)

Indexed As: Murray v. Capital District Health Authority

Nova Scotia Supreme Court

Boudreau, J.

May 27, 2016.

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, in a judgment reported (2015), 356 N.S.R.(2d) 239; 1126 A.P.R. 239, 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?". Murray subsequently moved to amend the pleadings to add the Attorney General of Nova Scotia as a defendant.

The Nova Scotia Supreme Court allowed the motion and added the Attorney General as a defendant.

Courts - Topic 2189

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Orders - [See Practice - Topic 210.1 ].

Practice - Topic 210.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - General - 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 - The East Coast Forensic Hospital (health employees) was the named defendant - The action was certified as a class proceeding on behalf of all of the patients, with Murray appointed as the representative plaintiff - Murray subsequently moved to amend the pleadings to add the Attorney General of Nova Scotia (correctional employees) as a defendant - The basis for adding the Attorney General was that information originally indicated that a health employee made the strip-search decision, but subsequent information named a corrections employee as the ultimate decision-maker - The Nova Scotia Supreme Court allowed the motion and added the Attorney General as a defendant - The certified claims and common issues were the same against the Hospital and the Attorney General - Although the Attorney General challenged certification of the intrusion upon seclusion claim, the court, having made a final decision on the certification of that claim, was functus officio - The existing certified common issues were equally applicable to the Attorney General - The issues, as framed, would not prejudice the Attorney General and all the prerequisites of s. 7(1) of the Class Proceedings Act were met.

Practice - Topic 672

Parties - Adding or substituting parties - Adding or substituting defendants - Circumstances where allowed - [See Practice - Topic 210.1 ].

Counsel:

Michael Dull, for the plaintiff;

Karen Bennett-Clayton, for the defendant;

Agnes McNeil and Catherine Lunn, for the proposed defendant.

This motion was heard on March 22, 2016, at Halifax, N.S., before Boudreau, J., of the Nova Scotia Supreme Court, who delivered the following judgment on May 27, 2016.