Toney v. Royal Canadian Mounted Police et al., (2014) 597 A.R. 105 (QB)

• Judge: Hughes, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 22, 2014
• Citations: (2014), 597 A.R. 105 (QB);2014 ABQB 585

Toney v. RCMP (2014), 597 A.R. 105 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. OC.010

Allen Toney, Yvonne Toney and Courtney Toney and Rebecca Toney as represented by their litigation guardian Allen Toney (plaintiffs/respondents) v. Her Majesty the Queen in Right of Canada in the name of the Royal Canadian Mounted Police, and Her Majesty the Queen in Right of the Province of Alberta as represented by the Minister of Sustainable Resource Development (defendants/applicants)

(1301 13722; 2014 ABQB 585)

Indexed As: Toney v. Royal Canadian Mounted Police et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hughes, J.

September 24, 2014.

Summary:

The Toney family were on a boating trip when their boat became disabled and they had to call for assistance. The Royal Canadian Mounted Police (RCMP) and Alberta Fish & Wildlife officials undertook a marine search and rescue operation using a Fish & Wildlife vessel (the vessel). The vessel capsized, resulting in the drowning death of one of the Toney children. On September 26, 2011, the Toneys commenced an in rem and in personam action against the RCMP, Alberta, and the vessel in the Federal Court. That action was dismissed against Alberta on the grounds that the Federal Court lacked personal jurisdiction over Alberta (see 448 N.R. 175). The action was stayed to permit Canada to commence third party proceedings against Alberta in the Alberta Court of Queen's Bench. On November 20, 2013, the Toneys commenced an action in Alberta, seeking damages for their own personal injuries and for their grief under the Alberta Fatal Accidents Act (FAA). By virtue of ss. 50.1(2) and 50.1(3) of the Federal Courts Act, the action against Canada was deemed to have been filed on September 26, 2011. The defendants applied to strike all or part of the Toneys' claim.

The Alberta Court of Queen's Bench struck the claim against Alberta on the basis that it was out of time and had no reasonable prospect of success. The court also dismissed the claim under the FAA.

Admiralty - Topic 8404

Practice - Actions in personam - Personal injuries - The Toney family were on a boating trip when their boat became disabled and they had to call for assistance - The Royal Canadian Mounted Police and Alberta Fish & Wildlife officials undertook a marine search and rescue operation using an Alberta vessel (the vessel) - The vessel capsized, resulting in the drowning death of one of the Toney children (Janessa) - The Toneys sued Canada and Alberta in the Federal Court on September 26, 2011 - The action against Alberta was dismissed and the action stayed to permit proceedings to commence in Alberta - The Toneys sued Canada and Alberta in Alberta on November 20, 2013 - The action against Canada was deemed to have been filed on September 26, 2011 (Federal Courts Act, ss. 50.1(2), 50.1(3)) - The defendants asserted that the alleged injures arose from Janessa's death and were captured by s. 6 of the federal Marine Liability Act (MLA) and the claim was out of time because it was brought more than two years after the date of death (MLA, s. 14(2)) - The Alberta Court of Queen's Bench held that the Toneys had a claim respecting their own independent torts - Section 6 was the dependant's relief provision - It did not restrict the Toneys' claim for their own personal injuries - The fact that they witnessed Janessa's death and that it contributed to their direct injuries did not make their claim a dependants' relief claim - Their personal injuries were compensable under maritime law - The MLA incorporated a two limitation period for personal injury claims by certain types of passengers - It also provided a three year catch-all limitation period (s. 140) - Since it was not plain and obvious that the Toneys were passengers subject to the two year limitation period and their claim against Canada was filed within three years of the accident date, the court refused to strike the claim against Canada - The court struck the claim against Alberta as it was filed well beyond the s. 140 limitation period and had no reasonable prospect of success - While s. 140 was amenable to the discoverability principle, discoverability did not postpone the limitation period in the circumstances - See paragraphs 13 to 29.

Admiralty - Topic 8405

Practice - Actions in personam - Fatal accidents - [See Admiralty - Topic 8404 ].

Admiralty - Topic 8405

Practice - Actions in personam - Fatal accidents - The Toney family were on a boating trip when their boat became disabled and they had to call for assistance - The Royal Canadian Mounted Police and Alberta Fish & Wildlife officials undertook a marine search and rescue operation using an Alberta vessel (the vessel) - The vessel capsized, resulting in the drowning death of one of the Toney children (Janessa) - The Toneys sued Canada and Alberta under the federal Marine Liability Act (MLA), claiming damages for, inter alia, grief under the Alberta Fatal Accidents Act (FAA) - The Toneys acknowledged that they had filed their claim too late to make a dependants' relief claim under the MLA, but asserted that compensation for grief suffered as a result of the death of a family member under the FAA was different than loss of guidance, care and companionship under the MLA - They asserted that damages awarded under the FAA were supplemental to damages available under Canadian maritime law, not in conflict with them - The Alberta Court of Queen's Bench struck the claim under the FAA - Damages for grief under the FAA could not be severed from damages for loss of guidance, care and companionship - The court was not persuaded that the FAA was supplemental to the MLA - The court did not have to decide if the MLA and the FAA provisions could co-exist as the claim under the FAA was out of time - The claim was subject to the two year limitation period under s. 3 of the Alberta Limitations Act - The Toneys knew of Janessa's death in the early hours of September 28, 2008, and one could presume that their grief was immediate - They knew, or ought to have known, the death was attributable to the defendants' conduct and that it warranted bringing proceedings - The Toneys' claim for bereavement damages against Canada and Alberta, filed on September 26, 2011 and November 20, 2013, respectively, were out of time - See paragraphs 30 to 34.

Admiralty - Topic 8410

Practice - Actions in personam - Limitation periods - [See Admiralty - Topic 8404 ].

Admiralty - Topic 8514

Practice - Pleadings - Striking out - General - [See Admiralty - Topic 8404 ].

Crown - Topic 465

Statutes affecting the Crown - Particular matters - Limitation periods - [See Admiralty - Topic 8404 and second Admiralty - Topic 8405 ].

Crown - Topic 4082

Actions by and against Crown in Right of Province - Defences, bars or exclusions - Limitation of actions - [See Admiralty - Topic 8404 and second Admiralty - Topic 8405 ].

Damages - Topic 2378

Torts causing death - Particular damage claims - Loss of guidance, care and companionship - [See second Admiralty - Topic 8405 ].

Damages - Topic 2380

Torts causing death - Particular damage claims - Bereavement (incl. Fatal Acccident claims) - [See second Admiralty - Topic 8405 ].

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Admiralty - Topic 8404 ].

Limitation of Actions - Topic 3049

Actions in tort - Fatal accidents - When time begins to run - [See second Admiralty - Topic 8405 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Admiralty - Topic 8404 ].

Practice - Topic 2239.2

Pleadings - Striking out pleadings - Grounds - Action prescribed or barred by limitation period - [See Admiralty - Topic 8404 and second Admiralty - Topic 8405 ].

Cases Noticed:

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011), 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 13].

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 2000 ABCA 121, refd to. [para. 13].

Dotto Estate et al. v. Thickson et al. (2013), 564 A.R. 148; 2013 ABQB 348 (Master), refd to. [para. 16].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 19].

Ryan Estate et al. v. Universal Marine Ltd. et al. (2013), 447 N.R. 1; 339 Nfld. & P.E.I.R. 312; 1054 A.P.R. 312; 2013 SCC 44, refd to. [para. 19].

Aerts et al. v. Olson et al. (1999), 117 O.A.C. 180; 42 O.R.(3d) 741 (Div. Ct.), refd to. [para. 21].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 27].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 27].

Statutes Noticed:

Fatal Accidents Act, R.S.A. 2000, c. F-8, sect. 8(2)(b) [para. 30].

Marine Liability Act, S.C. 2001, c. 6, sect. 6(3) [para. 17].

Counsel:

Darren Williams, for the plaintiffs;

Bruce Hughson and Ian Weibe (Department of Justice Canada), for the defendant, Canada;

Marta Burns and Lisa Farion (Alberta Justice - Civil Litigation), for the defendant, Alberta.

This application was heard on May 22, 2014, by Hughes, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on September 24, 2014.