Walsh et al. v. Coady Estate et al., 2016 NSCA 60

• Judge: Bryson, Saunders and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 27, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 60;(2016), 376 N.S.R.(2d) 86 (CA)

Walsh v. Coady Estate (2016), 376 N.S.R.(2d) 86 (CA);

    1185 A.P.R. 86

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JL.029

Attorney General of Canada, RCMP Cst. Katie Green and Unidentified RCMP Members (appellants) v. Tammy Walsh as Executor for the Estate of Christopher Walsh; Tammy Walsh in her own right; Tammy Walsh as Litigation Guardian for Shamya Walsh (an infant); Tammy Walsh as Litigation Guardian for Savannah Walsh (an infant); Estate of Ralph Michael Coady, Jr.; Coast Tire & Auto Services Ltd.; and Newalta Corporation (respondents)

(CA 440770; 2016 NSCA 60)

Indexed As: Walsh et al. v. Coady Estate et al.

Nova Scotia Court of Appeal

Bryson, Saunders and Bourgeois, JJ.A.

July 27, 2016.

Summary:

Multiple citizen complaints of erratic and risky driving led the R.C.M.P. to locate a vehicle being driven by Coady at a convenience store. After speaking with Coady, the R.C.M.P. let him continue. They did not conduct a sobriety test or check the mechanical condition of the vehicle. Coady drove off. The R.C.M.P. left in the opposite direction. Shortly thereafter, Coady was seen by others driving erratically. Suddenly, Coady's vehicle crossed the centre line and struck an oncoming commercial vehicle being driven by Walsh. Both drivers died. Coady's vehicle had been having mechanical problems (pulling to the left). His mechanic at Coast Tire did not have time to fix the problem, so Coady left and was told to make an appointment the next week. He was not advised that it was dangerous to drive the vehicle. The accident resulted in three separate negligence actions. In two of the actions against Coady et al. (one by Walsh et al. and the other by the owner of the commercial vehicle) the plaintiffs named the R.C.M.P. and others (federal defendants) as defendants. The statements of claim alleged various negligent acts by the R.C.M.P., including failing to properly investigate the erratic driving complaints, failing to properly interview Coady to determine whether he was fit to drive, failing to investigate whether the vehicle was mechanically fit to be on the highway, failing to investigate whether Coady was impaired by alcohol, drugs, or physical or mental problems, and failing to follow Coady's vehicle when it left the convenience store to determine whether he presented a threat to public safety. The federal defendants brought a motion under rule 13.03 for summary judgment to dismiss the action as against them on the ground that the pleadings did not disclose a cause of action against them where no prima facie duty of care was owed to the plaintiffs.

The Nova Scotia Supreme Court, in a judgment reported (2015), 362 N.S.R.(2d) 88; 1142 A.P.R. 88, dismissed the motion. It was not plain and obvious that the claim against the R.C.M.P. and individual officers could not succeed. The R.C.M.P. appealed.

The Nova Scotia Court of Appeal dismissed the appeal. The court stated that "the case law has not clearly established that a private law duty of care was owed by police to members of the public in the position of the plaintiffs in this case and that a full Anns/Cooper analysis should have been performed".

Police - Topic 5028

Actions against police - Negligence - Failure to warn and protect - [See Torts - Topic 9154 ].

Police - Topic 5030

Actions against police - Negligence - Duty to public - [See Torts - Topic 9154 ].

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation - [See Torts - Topic 9154 ].

Torts - Topic 9154

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Police officers and authorities - Multiple citizen complaints of erratic and risky driving led the R.C.M.P. to locate a vehicle being driven by Coady at a convenience store - After speaking with Coady, the R.C.M.P. let him continue - They did not conduct a sobriety test or check the mechanical condition of the vehicle - Coady drove off - The R.C.M.P. left in the opposite direction - Shortly thereafter, Coady was seen by others driving erratically - Suddenly, Coady's vehicle crossed the centre line and struck an oncoming commercial vehicle being driven by Walsh - Both drivers died - Coady's vehicle had been having mechanical problems (pulling to the left) - His mechanic at Coast Tire did not have time to fix the problem, so Coady left and was told to make an appointment the next week - He was not advised that it was dangerous to drive the vehicle - The accident resulted in three separate negligence actions - In two of the actions against Coady et al. (one by Walsh et al. and the other by the owner of the commercial vehicle) the plaintiffs named the R.C.M.P. and others (federal defendants) as defendants - The statements of claim alleged various negligent acts by the R.C.M.P., including failing to properly investigate the erratic driving complaints, failing to properly interview Coady to determine whether he was fit to drive, failing to investigate whether the vehicle was mechanically fit to be on the highway, failing to investigate whether Coady was impaired by alcohol, drugs, or physical or mental problems, and failing to follow Coady's vehicle when it left the convenience store to determine whether he presented a threat to public safety - The federal defendants brought a motion under rule 13.03 for summary judgment to dismiss the action as against them on the ground that the pleadings did not disclose a cause of action against them where no prima facie duty of care was owed to the plaintiffs - The motions judge dismissed the motion - It was not plain and obvious that the claim against the R.C.M.P. and individual officers could not succeed - The Nova Scotia Court of Appeal dismissed the R.C.M.P.'s appeal - The court stated that "the case law has not clearly established that a private law duty of care was owed by police to members of the public in the position of the plaintiffs in this case and that a full Anns/ Cooper analysis should have been performed. ... It is not 'plain and obvious' that the RCMP do not owe a duty to the plaintiffs on the pleadings. Harm to the plaintiffs was foreseeable. The locating of Mr. Coady and RCMP interaction with him establishes potential proximity between them and the plaintiffs. Whether a duty of care arises in fact in all the circumstances is a triable issue. There may be residual policy considerations that would negate a prima facie duty of care. These would be better addressed at trial or on a motion that permitted evidence." - See paragraphs 1 to 97.

Counsel:

Angela J. Green, for the appellant, Attorney General of Canada;

J. Christopher Nagle, for the respondent, Tammy Walsh as Executor for the Estate of Christopher Walsh (watching brief only);

Tia Silver Surette, on behalf of Michael Brooker, Q.C., for the respondent, Estate of Michael Coady, Jr. (watching brief only);

Franco Tarulli, for the respondent, Coast Tire & Auto Services Ltd;

Jack Townsend and D. Kevin Burke, for the respondent, Newalta Corp.

This appeal was heard on January 19, 2016, at Halifax, N.S., before Bryson, Saunders and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal.

On July 27, 2016, Bryson, J.A., delivered the following judgment for the Court of Appeal.