Walsh et al. v. Coady Estate et al., 2015 NSSC 175

• Judge: Arnold, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 13, 2014
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 175;(2015), 362 N.S.R.(2d) 88 (SC)

Walsh v. Coady Estate (2015), 362 N.S.R.(2d) 88 (SC);

    1142 A.P.R. 88

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JN.028

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); and Tammy Walsh as Litigation Guardian for Savannah Walsh (an infant) (plaintiff) v. The Estate of Ralph Michael Coady, Jr. and Coast Tire & Auto Services Ltd., a body corporate, and Attorney General of Canada, R.C.M.P. Cst. Katie Green and Unidentified R.C.M.P. Members (defendants)

Newalta Corporation, a body corporate (plaintiff) v. The Estate of Ralph Michael Coady, Jr. and Coast Tire & Auto Services Ltd., a body corporate, and Attorney General of Canada, R.C.M.P. Cst. Katie Green and Unidentified R.C.M.P. Members (defendants)

Barneys River Fish Farm Ltd., a body corporate (plaintiff) v. The Estate of Ralph Michael Coady, Jr. and Coast Tire & Auto Services Ltd., a body corporate, and Attorney General of Canada, R.C.M.P. Cst. Katie Green and Unidentified R.C.M.P. Members (defendants)

(Pic. No. 353685; Hfx. No. 370332; Pic. No. 390342; 2015 NSSC 175)

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

Nova Scotia Supreme Court

Arnold, J.

June 15, 2015.

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 dismissed the motion. It was not plain and obvious that the claim against the R.C.M.P. and individual officers could not succeed.

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 Nova Scotia Supreme Court 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 court stated that "The duty of care alleged in the case at bar falls within the recognized class of cases involving a public authority's negligent failure to act within established policies when it was foreseeable that the failure to do so might result in physical harm to a member of the community who was in geographic proximity. I do not feel it is necessary to undertake an Anns analysis as I am satisfied that the case does fall within a category of cases involving a previously recognized cause of action." - See paragraphs 18 to 79.

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. 7].

Cragg v. Eisener, [2012] N.S.R.(2d) Uned. 234; 2012 NSCA 101, refd to. [para. 8].

MacQueen et al. v. Ispat Sidbec Inc. et al. (2007), 253 N.S.R.(2d) 188; 807 A.P.R. 188; 2007 NSCA 33, refd to. [para. 9].

Shane v. Allen et al. (2010), 304 N.S.R.(2d) 28; 960 A.P.R. 28; 2010 NSSC 484, refd to. [para. 10].

Barton v. Nova Scotia (Attorney General) et al. (2013), 329 N.S.R.(2d) 2; 1042 A.P.R. 2; 2013 NSSC 121, refd to. [para. 11].

Jane Doe v. Board of Police Commissioners of Metropolitan Toronto et al. (1990), 40 O.A.C. 161 (Div. Ct.), refd to. [para. 12].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 20].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al. (2001), 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 20].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

O'Rourke v. Schacht, [1976] 1 S.C.R. 53; 3 N.R. 453, refd to. [para. 24].

Dorset Yacht Co. v. Home Office, [1970] A.C. 1004 (H.L.), refd to. [para. 26].

Knox et al. v. Eastman et al. (1999), 18 B.C.T.C. 58; 1999 CanLII 5940 (S.C.), refd to. [para. 28].

Bergen v. Guliker et al., [2014] B.C.T.C. Uned. 5; 2014 BCSC 5, refd to. [para. 30].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 38].

R. v. MacLennan (J.W.) (1995), 138 N.S.R.(2d) 369; 394 A.P.R. 369 (C.A.), refd to. [para. 39].

R. v. Cooper (M.A.) (2005), 231 N.S.R.(2d) 156; 733 A.P.R. 156; 2005 NSCA 47, refd to. [para. 40].

Hutterian Brethren of Wilson Colony et al. v. Alberta (2009), 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 41].

Haggerty Estate et al. v. Rogers et al., [2011] O.T.C. Uned. 5312; 2011 ONSC 5312, refd to. [para. 43].

Lafleur v. Maryniuk (1990), 48 B.C.L.R.(2d) 180; 1990 CarswellBC 184 (S.C.), refd to. [para. 48].

Castle v. Ontario, 2014 ONSC 3610, refd to. [para. 52].

Patrong v. Banks et al., [2013] O.T.C. Uned. 5746; 2013 ONSC 5746, refd to. [para. 57].

Patrong v. Banks et al., 2015 ONSC 3078, refd to. [para. 57].

Spencer v. Canada (Attorney General) et al. (2010), 304 N.S.R.(2d) 1; 960 A.P.R. 1; 2010 NSSC 446, refd to. [para. 59].

McClements v. Pike et al., [2012] Yukon Cases Uned. 84; 2012 YKSC 84, refd to. [para. 67].

Attis et al. v. Canada (Minister of Health) et al. (2008), 254 O.A.C. 91; 93 O.R.(3d) 35; 2008 ONCA 660, refd to. [para. 72].

Mooney v. British Columbia (Attorney General) et al. (2004), 202 B.C.A.C. 74; 331 W.A.C. 74; 2004 BCCA 402, refd to. [para. 75].

B.M. v. British Columbia (Attorney General) - see Mooney v. British Columbia (Attorney General) et al.

Statutes Noticed:

Motor Vehicle Act, R.S.N.S. 1989, c. 293, sect. 83 [para. 17].

Police Act, S.N.S. 2004, c. 31, sect. 30 [para. 15]; sect. 424(2) [para. 16].

Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sect. 18 [para. 14].

Counsel:

Christopher J. Nagle, for the plaintiffs, Tammy Walsh, Estate of Christopher Walsh, Shamya Walsh and Savannah Walsh;

D. Kevin Burke, for the plaintiff, Newalta Corp.;

Michael R. Brooker, for the defendant, the Estate of Ralph Michael Coady, Jr.;

R. Gregory D. Hardy, for the defendant, Coast Tire & Auto Services Ltd.;

Susan Inglis, for the defendant applicants, Attorney General of Canada, R.C.M.P. Cst. Katie Greene and unidentified R.C.M.P. members.

This motion was heard on November 13, 2014, at Pictou, N.S., before Arnold, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 15, 2015.