Neufeld v. Manitoba, (2002) 166 Man.R.(2d) 208 (CA)

• Judge: Scott, C.J.M., Twaddle and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: Friday September 13, 2002
• Jurisdiction: Manitoba
• Citations: (2002), 166 Man.R.(2d) 208 (CA);2002 MBCA 123

Neufeld v. Man. (2002), 166 Man.R.(2d) 208 (CA);

    278 W.A.C. 208

MLB headnote and full text

Temp. Cite: [2002] Man.R.(2d) TBEd. OC.006

Leslie Wayne Neufeld on his own behalf and on behalf of all persons unlawfully searched by the Winnipeg Centre Courthouse Perimeter Security Program (plaintiffs/appellants) v. The Government of Manitoba (defendant/respondent)

(AI 02-30-05273; 2002 MBCA 123)

Indexed As: Neufeld v. Manitoba

Manitoba Court of Appeal

Scott, C.J.M., Twaddle and Freedman, JJ.A.

September 13, 2002.

Summary:

Neufeld sued on his own behalf and on behalf of all persons unlawfully searched by the Winnipeg Centre Courthouse Perimeter Security Program between August 17, 1998 and April 20, 2000. The defendant, the Government of Manitoba, moved to strike out that portion of the amended statement of claim issued on behalf of all persons unlawfully searched by the security program.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at 152 Man.R.(2d) 222, allowed the motion. Neufeld appealed and moved for summary judgment in the sum of $300,000,000 to establish a fund for the purported class, to have the matter referred to the Master to determine who should be entitled to access the fund and to have the fund distributed in accordance with the formula of $500 for every illegal search.

The Manitoba Court of Queen's Bench, in a decision reported at 161 Man.R.(2d) 18, struck the appeal, treated the claim as being a test case on Neufeld's behalf only and dismissed the claim. The order entered expressly dismissed the motion for summary judgment. Neufeld appealed.

The Manitoba Court of Appeal dismissed the appeal from the dismissal of the motion for summary judgment, allowed the appeal from the dismissal of the action and restored the action.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - A motions judge struck the portion of Neufeld's amended statement of claim issued on behalf of all persons unlawfully searched (approximately 600,000 searches) under the Winnipeg Centre Courthouse Perimeter Security Program - The motions judge expressed concern that Neufeld lacked the financial and administrative capacity for the purpose of giving notice of, and dealing with the responses of, the individual class members - Further, Neufeld could not adequately represent the class - Even without those concerns, a class action would not avoid a multiplicity of hearings as each claimant would have to prove that he or she attended the courthouse and when - The Manitoba Court of Appeal affirmed the decision - See paragraphs 6 to 11.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations - When class action appropriate - [See Practice - Topic 209.1 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - Neufeld sued the Province for damages and moved for summary judgment - The motions judge ruled on the motion pursuant to Queen's Bench Rule 20.03(3), thus blending it into a request to decide the merits of the case itself on a question of law - The motions judge dismissed the motion and action, holding, inter alia, that damages were not available where the government had acted in good faith - The Manitoba Court of Appeal affirmed the dismissal of the motion, but restored the action - The motions judge erred in making a finding of fact on the issue of good faith in order to deal with the rule 20.03(3) request - Rule 20.03(3) did not apply where a material fact was in issue - The motions judge should have confined herself to what was capable of being determined on the basis of the record - That would have led her to dismissing the summary judgment motion, but not the claim itself.

Cases Noticed:

R. v. Lindsay (D.K.) (1999), 142 Man.R.(2d) 96; 212 W.A.C. 96 (C.A.), refd to. [para. 1].

R. v. Gillespie - see R. v. Lindsay (D.K.).

Gillespie v. Manitoba (Attorney General) (2000), 145 Man.R.(2d) 229; 218 W.A.C. 229 (C.A.), refd to. [para. 2].

R. v. Gillespie - see Gillespie v. Manitoba (Attorney General).

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201 (S.C.C.), refd to. [para. 6].

Podkriznik v. Schwede (1990), 64 Man.R.(2d) 199 (C.A.), refd to. [para. 13].

Persaud v. Donaldson et al. (1997), 97 O.A.C. 216; 32 O.R.(3d) 349 (Div. Ct.), refd to. [para. 20].

Statutes Noticed:

Rules of Court (Man.), Queen's Bench Rules, rule 20.03(3) [para. 14].

Counsel:

R.I. Histed, for the appellants;

H. Leonoff, Q.C., for the respondent.

This appeal was heard and decided on September 13, 2002, by Scott, C.J.M., Twaddle and Freedman, JJ.A., of the Manitoba Court of Appeal. Freedman, J.A., delivered the following written reasons on September 24, 2002.