Neufeld v. Manitoba,

• Jurisdiction: Manitoba
• Judge: Hamilton, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Citation: 2001 MBQB 201,(2001), 161 Man.R.(2d) 18 (QB)
• Date: 23 October 2001

Neufeld v. Man. (2001), 161 Man.R.(2d) 18 (QB)

MLB headnote and full text

Temp. Cite: [2001] Man.R.(2d) TBEd. DE.023

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

(CI 00-01-18719; 2001 MBQB 201)

Indexed As: Neufeld v. Manitoba

Manitoba Court of Queen's Bench

Winnipeg Centre

Hamilton, J.

November 23, 2001.

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 struck the appeal, treated the claim as being a test case on Neufeld's behalf only and dismissed the claim.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - Neufeld sued the Province for damages resulting from searches at a court house that were subsequently determined to be unlawful - The Manitoba Court of Queen's Bench dismissed the claim - Section 97 of the Court of Queen's Bench Act was a complete defence to the searches conducted after an initial period where they were done in good faith under a court order or process - Alternatively, the Province was not liable for any of the searches based on the defence of "colour of right" - In the further alternative, it was not appropriate and just to award damages, considering, inter alia, the bona fide public policy aspect of the Province's actions and the declaratory remedies already granted - As a general rule, damages were not available retroactively after a declaration of unconstitutionality - Assuming that damages should only be awarded in exceptional cases absent a finding of malice, the circumstances were not exceptional - See paragraphs 50 to 71.

Crown - Topic 1647

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Colour of right - [See Civil Rights - Topic 8375].

Crown - Topic 2803

Crown immunity - General - Immunity under provincial legislation - [See Civil Rights - Topic 8375].

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The Manitoba Court of Queen's Bench 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 court 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 - A test case was a more efficient way of determining the legal issues - See paragraphs 37 to 49.

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].

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. 1].

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

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 (S.C.C.), refd to. [para. 3].

R. v. Lindsay (D.K.) (1999), 137 Man.R.(2d) 68 (Q.B.), refd to. [para. 8].

Naken et al. v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72; 46 N.R. 139, refd to. [para. 21].

Ranjoy Sales and Leasing Ltd. et al. v. Deloitte, Haskins & Sells, [1984] 4 W.W.R. 706; 27 Man.R.(2d) 311 (Q.B.), affd. [1985] 2 W.W.R. 534; 31 Man.R.(2d) 87 (C.A.), refd to. [para. 21].

Neufeld v. Manitoba (2000), 152 Man.R. (2d) 222 (Q.B. Master), refd to. [para. 21].

Bywater v. Toronto Transit Commission (1998), 83 O.T.C. 1; 27 C.P.C.(4th) 172 (Gen. Div.), refd to. [para. 28].

Hollick v. Metropolitan Toronto (Municipality) et al. (2001), 277 N.R. 51; 153 O.A.C. 279 (S.C.C.), refd to. [para. 36].

Rumley et al. v. British Columbia (2001), 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1 (S.C.C.), refd to. [para. 36].

Persaud v. Donaldson et al. (1997), 97 O.A.C. 216; 32 O.R.(3d) 349 (Div. Ct.), refd to. [para. 56].

Welbridge Holdings Ltd. v. Greater Winnipeg (Municipality), [1971] S.C.R. 957; [1972] 3 W.W.R. 433; 22 D.L.R.(3d) 470, refd to. [para. 57].

Guimond v. Québec (Procureur général), [1996] 3 S.C.R. 347; 201 N.R. 380, refd to. [para. 58].

Lewis v. Burnaby School District No. 41, [1992] B.C.J. No. 1568 (S.C.), refd to. [para. 62].

Arsenault-Cameron et al. v. Prince Edward Island (1997), 147 Nfld. & P.E.I.R. 308; 459 A.P.R. 308 (P.E.I.S.C.), revd. (1997), 162 Nfld. & P.E.I.R. 329; 500 A.P.R. 329 (P.E.I.C.A.), revd., [2000] 1 S.C.R. 3; 249 N.R. 140; 184 Nfld. & P.E.I.R. 44; 599 A.P.R. 44, refd to. [para. 63].

Shewfelt v. Canada, [1997] B.C.T.C. Uned. 409; [1997] 4 W.W.R. 292 (S.C.) refd to. [para. 64].

Schachter v. Canada, [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1, refd to. [para. 64].

Krznaric v. Chevrette et al. (1997), 48 O.T.C. 85 (Gen. Div.), refd to. [para. 70].

Authors and Works Noticed:

Dussault and Borgeat, Administrative Law (2nd Ed. 1990), vol. 5, p. 177 [para. 58].

Pilkington, M.L., Monetary Redress for Charter Infringement, in Sharpe, R.J., Charter Litigation (1987), pp. 319-20 [para. 60].

Sharpe, R.J., Charter Litigation (1987), pp. 319-20 [para. 60].

Counsel:

R. Ian Histed, for the plaintiff;

Heather Leonoff, for the defendant.

This appeal and motion were heard on March 20, September 12 and October 23, 2001, by Hamilton, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on November 23, 2001.