Patterson Estate v. Storry et al., (2002) 305 A.R. 124 (QB)

• Judge: Dea, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 16, 2002
• Citations: (2002), 305 A.R. 124 (QB);2002 ABQB 127

Patterson Estate v. Storry (2002), 305 A.R. 124 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. FE.029

Karen Turk, personal representative of the Estate of Stuart Bradley Patterson, deceased, Joy Patterson, Wallace Patterson and Joy Patterson, Executor of the Estate of Wallace Patterson, deceased (plaintiffs) v. Jayson Storry, Her Majesty the Queen in the Right of Canada and the Attorney General of Canada (defendants) and The Attorney General of Canada (plaintiff by counterclaim) and Karen Turk, personal representative of the Estate of Stuart Bradley Patterson, deceased, and Joy Patterson, Executor of the Estate of Wallace Patterson, deceased (defendants by counterclaim)

(No. 0003-02578; 2002 ABQB 127)

Indexed As: Patterson Estate v. Storry et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Dea, J.

February 7, 2002.

Summary:

Stuart Patterson was killed when the car he was driving collided with a vehicle operated by the defendant Jason Storry and owned by the Government of Canada. Storry was a member of the Canadian Forces and at the time of the accident he was acting in the course of his duties. Patterson's estate sued Storry and the Crown in right of Canada for damages for negligence. The defendants applied for summary judgment based on the provisions of the National Defence Act, R.S.C. 1985, c. N-5, and the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50.

The Alberta Court of Queen's Bench allowed the application and dismissed the plaintiffs' action.

Armed Forces - Topic 10

General - Application of limitation period -[See Limitation of Actions - Topic 7588 ].

Constitutional Law - Topic 6104

Federal jurisdiction - Military and defence - Scope of power - In an application for summary judgment a court considered the constitutional validity of the six month limitation period in s. 269(1) of the National Defence Act, R.S.C. 1985, c. N-5 - The Alberta Court of Queen's Bench declared such a limitation period valid and declared that it was within the exclusive jurisdiction of Parliament under s. 91(7) of the Constitution Act 1867 - See paragraphs 4 to 32.

Crown - Topic 1646

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Statutory authority - Stuart Patterson was killed when the car he was driving collided with a vehicle, owned by the Government of Canada, and operated by the defendant Jason Storry, a member of the military - Patterson's estate sued Storry and the Federal Crown - The claim against Storry was barred by the six month limitation in s. 269 of the National Defence Act - The Alberta Court of Queen's Bench held that the claim against the Crown was barred by ss. 8 and 11 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 - See paragraphs 52 to 59.

Crown - Topic 2885

Crown immunity - Exceptions - Benefit/burden or waiver exception - Stuart Patterson was killed when the car he was driving collided with a vehicle, owned by the Government of Canada and operated by the defendant Jason Storry, a member of the military - Patterson's estate sued Storry and the Federal Crown - The Crown counterclaimed - The plaintiff argued that the Crown by counterclaiming waived its right to rely on a limitation period in s. 269(1) of the National Defence Act - The Alberta Court of Queen's Bench held that the benefit/burden exception to Crown immunity did not apply in this case because there was insufficient nexus between the limitation period and the benefit of filing a counterclaim - See paragraphs 40 to 50.

Limitation of Actions - Topic 7588

Actions against the Crown - Applicability of limitation period - Based on employee's defences - Stuart Patterson was killed when the car he was driving collided with a vehicle, owned by the Government of Canada and operated by the defendant Jason Storry, a member of the military - Patterson's estate sued Storry and the Federal Crown - The claim against Storry was barred by the six month limitation in s. 269 of the National Defence Act - The Alberta Court of Queen's Bench held that by virtue of s. 24(a) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, the negligence claims against the Crown were barred - See paragraphs 33 to 39.

Cases Noticed:

Colledge and Niagara Regional Police Commission (1983), 44 O.R.(2d) 289 (C.A.), refd to. [para. 6].

Des Champs v. Conseil des écoles séparées catholiques de langue fançaise de Prescott-Russell, [1999] 3 S.C.R. 281; 245 N.R. 201; 125 O.A.C. 279, refd to. [para. 7].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201, refd to. [para. 9].

R. v. MacKay, [1980] 2 S.C.R. 370; 33 N.R. 1, refd to. [para. 11].

Nykorak v. Attorney General of Canada, [1962] S.C.R. 331, refd to. [para. 12].

Law Society of British Columbia v. Mangat (2001), 276 N.R. 339; 157 B.C.A.C. 161; 256 W.A.C. 161 (S.C.C.), refd to. [para. 16].

Clark v. Canadian National Railway Co. and New Brunswick, [1988] 2 S.C.R. 680; 89 N.R. 81; 89 N.B.R.(2d) 116; 226 A.P.R. 116, dist. [para. 17].

Whitbread v. Walley et al., [1990] 3 S.C.R. 1273; 120 N.R. 109, refd to. [para. 22].

Williams v. Bray, [1993] B.C.J. No. 916 (S.C.), refd to. [para. 25].

Fenn v. Henderson, [1997] B.C.T.C. Uned. G05 (S.C.), refd to. [para. 25].

R. v. Canada (Minister of National Defence) (1993), 125 N.S.R.(2d) 208; 349 A.P.R. 208 (C.A.), dist. [para. 34].

Way v. Canada et al. (1993), 63 F.T.R. 24 (T.D.), dist. [para. 34].

Keddy v. Canada (1992), 55 F.T.R. 110 (T.D.), dist. [para. 34].

Pelletier v. The Queen, [1970] Ex. C.R. 2, dist. [para. 34].

Scaglione v. McLean (1998), 55 O.T.C. 339; 38 O.R.(3d) 464 (Gen. Div.), refd to. [para. 36].

Zimpelmann v. Canada [2001] B.C.T.C. 439 (S.C.), refd to. [para. 38].

Baron v. Canada, [2001] N.R. Uned. 49 (F.C.A.), refd to. [para. 38].

Hazanfratz v. Canada (2001), 210 Sask.R. 271 (Q.B.), refd to. [para. 38].

Agriculture Financial Services Corp. v. Redmond (1999), 237 A.R. 152; 197 W.A.C. 152; 71 Alta. L.R.(3d) 189 (C.A.), refd to. [para. 42].

Sparling v. Quebec, [1988] 2 S.C.R. 1015; 89 N.R. 120; 20 Q.A.C. 174, refd to. [para. 42].

Neary v. Nova Scotia (Attorney General) and MacDonald (1994), 137 N.S.R.(2d) 31; 391 A.P.R. 31; 119 D.L.R.(4th) 597 (C.A.), dist. [para. 48].

Statutes Noticed:

Constitution Act, 1867, sect. 91(7) [para. 11].

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, sect. 8 [para. 52]; sect. 24(a) [para. 35]; sect. 32 [para. 5].

National Defence Act, R.S.C. 1985, c. N-5, sect. 269(1) [para. 4].

Authors and Works Noticed:

Hogg, Peter W., and Monahan, Patrick, Liability of the Crown (3rd Ed. 2000), p. 181 [para. 52].

Hogg, Peter W., Liability of the Crown in Australia, New Zealand and the United Kingdom (1971), generally [para. 43].

McNairn, Colin H., Governmental and Intergovernmental Immunity in Australia and Canada (1977), generally [para. 43].

Counsel:

Patrick J. McAllister, for the plaintiffs;

Bruce F. Hughson, for the defendants.

This application was heard on January 16, 2002, by Dea, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on February 7, 2002.