Trenholm Estate v. Can. (A.G.), 2015 NBQB 153

Judge:Rideout, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:June 24, 2015
Jurisdiction:New Brunswick
Citations:2015 NBQB 153;(2015), 438 N.B.R.(2d) 353 (TD)
 
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Trenholm Estate v. Can. (A.G.) (2015), 438 N.B.R.(2d) 353 (TD);

    438 R.N.-B.(2e) 353; 1141 A.P.R. 353

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Temp. Cite: [2015] N.B.R.(2d) TBEd. JL.034

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JL.034

Estate of Randy Trenholm, represented by Tanya Trenholm, Tanya Trenholm, in her own name, Elaine Davison, James Trenholm, and Deborah Gray (plaintiffs) v. The Attorney General of Canada, Royal Canadian Mounted Police, Securitas and Shediac/Cap-Pele Ambulance Service Ltd. (defendants)

(MC-447-12; 2015 NBQB 153; 2015 NBBR 153)

Indexed As: Trenholm Estate et al. v. Canada (Attorney General) et al.

Répertorié: Trenholm Estate et al. v. Canada (Attorney General) et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

July 14, 2015.

Summary:

Résumé:

Randy Trenholm died on June 2, 2007, while in the custody and care of the defendants. The plaintiffs (Trenholm's estate and siblings) claimed that the defendants were negligent. The notice of action was filed on April 24, 2012. The defendants moved for summary judgment under rule 22; in the alternative, to strike the action under rule 23, on the ground, among others, that the claim was statute barred by s. 8(4) of the Fatal Accidents Act, 1973, as the action was not commenced within two years from the date of Trenholm's death.

The New Brunswick Court of Queen's Bench, Trial Division, granted the motion.

Limitation of Actions - Topic 3049

Actions in tort - Fatal accidents - When time begins to run - [See Practice - Topic 5719 ].

Practice - Topic 2239.2

Pleadings - Striking out pleadings - Grounds - Action prescribed or barred by limitation period - [See Practice - Topic 5719 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Practice - Topic 5719 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - Randy Trenholm died on June 2, 2007, while in the custody and care of the defendants - The plaintiffs (Trenholm's estate and siblings) claimed that the defendants were negligent - The notice of action was filed on April 24, 2012 - The plaintiffs pled the 1973 Fatal Accidents Act (the Act) - The defendants moved for summary judgment under rules 22.01(3) and 22.04; in the alternative, to strike the action under rule 23, on the ground, among others, that the claim was statute barred by s. 8(4) of the Act, as the action was not commenced within two years from the date of Trenholm's death - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the claim pursuant to rule 22, finding that the claim was statute barred - If in error, the Court found that all portions of the statement of claim, even if assumed to be true, did not disclose a reasonable cause of action, and thus struck the pleadings pursuant to rule 23 - Finally, the law was settled and there was no right to bring the action under the common law - See paragraphs 25 to 34.

Cases Noticed:

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 17].

Dupuis v. Moncton (City) (2005), 284 N.B.R.(2d) 97; 742 A.P.R. 97; 2005 NBCA 47, refd to. [para. 18].

Marr v. Saint John (1995), 163 N.B.R.(2d) 286; 419 A.P.R. 286 (C.A.), refd to. [para. 19].

Agnew et al. v. Dow Chemical Co. et al. (1991), 116 N.B.R.(2d) 1; 293 A.P.R. 1 (C.A.), refd to. [para. 19].

Biseau v. Harnish (2012), 396 N.B.R.(2d) 223; 1024 A.P.R. 223 (T.D.), leave to appeal dismissed (2012), 397 N.B.R.(2d) 100; 1028 A.P.R. 100 (C.A.), refd to. [para. 19].

Statutes Noticed:

Fatal Accidents Act, R.S.N.B. 1973, c. F-7, sect. 8(4) [para. 21].

Intoxicated Persons Detention Act, R.S.N.B. 1973, c. I-14, sect. 5(1), sect. 5(2) [para. 24].

Limitation of Actions Act, S.N.B. 2009, c. L-8.5, sect. 27.2 [para. 23].

Rules of Court (N.B.), rule 22.01(3), rule 22.04, rule 23.01 [para. 16].

Counsel:

Avocats:

Candace Salmon, for the plaintiffs;

Murray Ritch, Q.C., for the defendant Securitas;

Leanne Wrathall, for the defendants Attorney General and R.C.M.P.;

Caitlin Mahoney, for the defendant Shediac/Cap-Pele Ambulance.

This motion was heard on June 24, 2015, before Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following decision, dated July 14, 2015.

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