Nagy v. Canada et al., 2006 ABCA 227

• Judge: Fraser, C.J.A., Ritter and Martin, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 06, 2006
• Citations: 2006 ABCA 227;(2006), 397 A.R. 94 (CA)

Nagy v. Can. (2006), 397 A.R. 94 (CA);

      384 W.A.C. 94

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. AU.055

Gregory Phillips (appellant/defendant) and James Kirk (appellant/defendant) v. Maria Nagy, by her next friend Fred Jajczay (respondent/plaintiff) and Maria Nagy, by her next friend Fred Jajczay (respondent/plaintiff) and Her Majesty the Queen in the Right of Canada, The City of Edmonton, The General Hospital (Grey Nuns) of Edmonton, Randy Jones, Diane Kalista, Joan Ashmore, John Ratcliff, Myron Babiuk, Nurse Jane Doe 7, Nurse Jane Doe 8, Nurse Jane Doe 9 and Nurse Jane Doe 10 (not parties/defendants)

(0503-0086-AC; 0503-0098-AC; 2006 ABCA 227)

Indexed As: Nagy v. Canada et al.

Alberta Court of Appeal

Fraser, C.J.A., Ritter and Martin, JJ.A.

August 16, 2006.

Summary:

The plaintiff arrived in Edmonton on a flight from Hungary. She was travelling with Vasas. The police had received information that Vasas would be transporting illegal drugs. Customs officers searched the plaintiff's luggage and the plaintiff was strip searched. The police arrested the plaintiff and she was taken to a hospital where the following procedures were performed on her by a doctor: stomach x-rays, induced vomiting, three enemas and body cavity searches. No drugs were found. The plaintiff sued for damages for unlawful search, false imprisonment and battery.

The Alberta Court of Queen's Bench, in a decision reported at 373 A.R. 338; 2005 ABQB 26, held that the police did not have reasonable and probable grounds to search and arrest the plaintiff. Further, since the plaintiff did not consent to the invasive procedures performed at the hospital, the doctor's actions constituted an assault and battery. The court found that the events caused the plaintiff to suffer from post-traumatic stress disorder and exacerbated her pre-existing psychiatric conditions. With respect to the unlawful search and false imprisonment, the court awarded the plaintiff $30,000 general damages as against the police officer (Kirk) who was the supervisor of police operations on the day in question. With respect to the assault and resulting mental injury, the court awarded the plaintiff $150,000 general damages as against Kirk and the doctor (Phillips) jointly. The court also awarded the plaintiff $50,000 punitive damages as against Kirk. Phillips and Kirk appealed from the findings of liability and the $150,000 award of general damages. Kirk also appealed from the $50,000 award of punitive damages.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 1216

Security of the person - Lawful or reasonable search - Strip searches - [See Civil Rights - Topic 1234 ].

Civil Rights - Topic 1234

Security of the person - Unlawful search - What constitutes - The plaintiff arrived in Edmonton on a flight from Hungary - She was travelling with Vasas - The police had received information from an informant that Vasas would be transporting illegal drugs - Customs officers searched the plaintiff's luggage and the plaintiff was strip searched - The police arrested the plaintiff and she was taken to a hospital where the following procedures were performed on her by a doctor: stomach x-rays, induced vomiting, three enemas and body cavity searches - No drugs were found - The Alberta Court of Appeal affirmed that the police did not have reasonable and probable grounds to search and arrest the plaintiff - Absent identification of the plaintiff by the informant, what was left were the observations made by customs officers (that the plaintiff was nervous, leaning on the counter, wearing dark eyeglasses and appeared bloated) and the items in the plaintiff's luggage which were relied on as indicating that she had secreted drugs in her body (three cans of deodorant spray and a package of condoms) - None of those supposed indicators that the plaintiff was carrying drugs provided reasonable and probable grounds - See paragraphs 21 to 45.

Damage Awards - Topic 215

Injury and death - Psychological injuries - Post-traumatic stress disorder - [See Damage Awards - Topic 628 ].

Damage Awards - Topic 628

Torts - Injury to the person - Assault and battery - Customs officers searched the plaintiff's luggage at an airport and the plaintiff was strip searched - The police arrested the plaintiff and she was taken to a hospital where the following procedures were performed on her by a doctor: stomach x-rays, induced vomiting, three enemas and body cavity searches - No drugs were found - The trial judge held that the police did not have reasonable and probable grounds to search and arrest the plaintiff - Further, since the plaintiff did not consent to the invasive procedures, the doctor's actions constituted an assault and battery - The trial judge found that the events caused the plaintiff to suffer from post-traumatic stress disorder and exacerbated her pre-existing psychiatric conditions - With respect to the unlawful search and false imprisonment, the plaintiff was awarded $30,000 general damages as against the police officer (Kirk) who supervised the police operations on the day in question - With respect to the assault and resulting mental injury, the plaintiff was awarded $150,000 general damages as against Kirk and the doctor (Phillips) jointly - The plaintiff was also awarded $50,000 punitive damages as against Kirk - Phillips and Kirk appealed from the $150,000 general damage award and Kirk appealed from the award of punitive damages - The Alberta Court of Appeal dismissed the appeal - Although the trial judge erred in using a seven-step mathematical approach to assess the plaintiff's damages for loss of enjoyment of life, the award of general damages of $150,000 was appropriate - The $50,000 award of punitive damages was also not excessive - See paragraphs 55 to 76.

Damage Awards - Topic 2012

Exemplary or punitive damages - False or unlawful imprisonment - [See Damage Awards - Topic 628 ].

Damages - Topic 1534

General damages - Elements of general damages - Loss of enjoyment of life - [See Damage Awards - Topic 628 ].

Medicine - Topic 3042

Relation with patient - Consent to treatment - Nature of doctor's obligation to obtain consent - [See Medicine - Topic 3044 ].

Medicine - Topic 3044

Relation with patient - Consent to treatment - What constitutes consent - The plaintiff arrived in Edmonton on a flight from Hungary - Customs officers searched her luggage and she was strip searched - The police arrested the plaintiff and she was taken to a hospital where the following procedures were performed on her by a doctor: stomach x-rays, induced vomiting, three enemas and body cavity searches - No drugs were found - The trial judge held, inter alia, that since the plaintiff did not consent to the invasive procedures performed on her, the doctor's actions constituted an assault and battery - On appeal, the doctor argued that the plaintiff consented to the procedures because she complied with requests made of her and cooperated in the procedures - He submitted that the trial judge erred when he stated that compliance was not consent - The Alberta Court of Appeal rejected the argument - Compliance did not automatically equal consent - It was one factor to be considered in deciding whether consent was given or should be implied - The trial judge applied the correct law to the issue of consent - The court commented that in the circumstances (where the doctor was presented with a patient in police custody and was asked to perform invasive non-medically necessary procedures), it was incumbent on the doctor to inquire of the patient, in private, whether the patient was consenting to the procedures of her own free will - See paragraphs 46 to 54.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1234 ].

Torts - Topic 3182

Trespass - Assault and battery - Assault - What constitutes - [See Medicine - Topic 3044 ].

Torts - Topic 3191

Trespass - Assault and battery - Battery - What constitutes - [See Medicine - Topic 3044 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 14].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 15].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 15].

Pfeifer et al. v. Westfair Foods Ltd. (2004), 361 A.R. 261; 339 W.A.C. 261; 2004 ABCA 422, refd to. [para. 16].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 17].

Nance v. British Columbia Electric Railway Co., [1951] A.C. 601 (P.C.), refd to. [para. 17].

Byron v. Larson (2004), 357 A.R. 201; 334 W.A.C. 201; 2004 ABCA 398, refd to. [para. 17].

Cooke v. Lavorato (2002), 320 A.R. 262; 288 W.A.C. 262; 2003 ABCA 25, refd to. [para. 17].

R. v. Wirsta (1970), 1 C.C.C.(2d) 538 (Alta. Dist. Ct.), refd to. [para. 41].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 43].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 44].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 46].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 46].

Nelitz v. Dyck et al. (2001), 139 O.A.C. 117; 52 O.R.(3d) 458 (C.A.), refd to. [para. 47].

Brushett v. Cowan (1990), 83 Nfld. & P.E.I.R. 66; 260 A.P.R. 66; 69 D.L.R.(4th) 743 (Nfld. C.A.), refd to. [para. 47].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 56].

Dix v. Canada (Attorney General) et al. (2002), 315 A.R. 1; 2002 ABQB 580, refd to. [para. 57].

Hohol v. Pickering et al. (1984), 51 A.R. 321 (C.A.), refd to. [para. 65].

Taylor v. Hogan (1998), 160 Nfld. & P.E.I.R. 93; 494 A.P.R. 93 (Nfld. C.A.), refd to. [para. 65].

Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 65].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 65].

Herron et al. v. Hunting Chase Inc. et al. (2003), 330 A.R. 53; 299 W.A.C. 53; 2003 ABCA 219, refd to. [para. 71].

D'Amato et al. v. Badger et al., [1996] 2 S.C.R. 1071; 199 N.R. 341; 79 B.C.A.C. 110; 129 W.A.C. 110, refd to. [para. 71].

Holman v. Martin (1995), 170 A.R. 267 (Q.B.), refd to. [para. 74].

Ye v. McConnell et al. (2001), 282 A.R. 73; 2001 ABQB 94, refd to. [para. 74].

Beger v. MacAstocker Estate (1996), 192 A.R. 241 (Q.B.), refd to. [para. 74].

Whitfield v. Calhoun (1999), 242 A.R. 201; 1999 ABQB 244, refd to. [para. 74].

Kinsella v. Logan et al. (1996), 179 N.B.R.(2d) 161; 455 A.P.R. 161 (C.A.), refd to. [para. 74].

Brown v. Matheson and von Kintzel (1990), 97 N.S.R.(2d) 428; 258 A.P.R. 428 (C.A.), refd to. [para. 74].

Young v. Bella et al. (2006), 343 N.R. 360; 254 Nfld. & P.E.I.R. 26; 764 A.P.R. 26; 2006 SCC 3, refd to. [para. 74].

Swain v. Moore Estate et al., [2000] O.T.C. 319 (Sup. Ct.), refd to. [para. 74].

Silva v. Valmana, [2003] O.T.C. 578 (Sup. Ct.), refd to. [para. 74].

Counsel:

P.D. Kirwin, for the respondent;

S.D. Johnson and A.L.L. Hurley, for the appellant, Gregory Phillips;

R.J. Gregory, for the appellant, James Kirk.

This appeal was heard on June 6, 2006, before Fraser, C.J.A., Ritter and Martin, JJ.A., of the Alberta Court of Appeal. The following reserved reasons for judgment of the Court of Appeal were delivered by Ritter, J.A., and were filed on August 16, 2006.