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PROCEEDINGS - Practice and procedure - Limitation periods

Tuesday, April 03, 2018 @ 8:19 AM  

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Application by the defendant Her Majesty the Queen in Right of the Province of British Columbia (Province) and the defendant Attorney General of Canada (Canada) for summary judgment dismissing Surakka's claim for damages on the grounds it was not filed within the time required by the Limitation Act. The Province also sought the dismissal of the declaratory relief action against it. Surakka, as the personal representative of Dudley, filed a claim for declaratory relief and damages under s. 24(1) of the Charter against the Royal Canadian Mounted Police (RCMP) for improper investigation. Surakka asserted the improper investigation of a call of shots fired led to a delay that caused or contributed to the death of her daughter, Dudley. Dudley had been shot in her home, but remained alive for four days until discovered, on which day she passed away. The notice of claim was filed three years and one month after Dudley's death. The defendants argued the claim was barred by s. 3(2)(a) of the Limitation Act, which prescribed a two-year limitation period for personal injury damages claims. Surakka argued the claim was not for personal injury and thus was covered by s. 3(5), which allowed for a six-year period. Surakka relied on authorities that limited s. 3(2)(a) to "direct damage" to person or property caused by an "extrinsic act". Surakka argued here the RCMP did not cause the "identifiable injury": the "extrinsic act" that caused the injury was the shooting. Rather, she argued the RCMP omissions imperiled Dudley's security of the person under s. 7 of the Charter. On the declaratory relief action, the Province asserted no facts established conduct by the Province, as opposed to the RCMP, constituted a breach of Dudley's s. 7 rights; RCMP members were employees of Canada and the Province was not liable for their conduct. Surakka argued the RCMP functioned as British Columbia's provincial police force under provincial legislation, and thus the Province had a legal responsibility for actions of the RCMP that resulted in a breach of Charter rights.

HELD: Application for dismissal of damages action allowed; application by the Province for dismissal of declaratory relief claim dismissed. The "identifiable injury" was the deterioration of Dudley's physical condition, resulting in a death that would likely not have occurred had police found her on the night of the shooting. Injury to Dudley's person was therefore an essential element of the claim for breach of her s. 7 rights. Surakka's claim was analogous to a medical negligence action in which a plaintiff alleged a doctor failed to diagnose or properly treat an injury or illness. There was never any question that such cases were claims for injury to the person and subject to the two-year limitation period. Surakka's claim was "in respect of injury to person" and governed by the two-year time limit in s. 3(2)(a) of the Limitation Act. The claim for damages was dismissed. On the issue of declaratory relief, the Provincial authority over the RCMP may nor may not make the Province responsible for RCMP actions in an individual case. On the current application, Surakka had raised an issue of legal responsibility on the part of the Province that could not be said was bound to fail. The Province's application for dismissal of the claim for declaratory relief was dismissed.

Dudley (Personal representative of) v. British Columbia, [2018] B.C.J. No. 273, British Columbia Supreme Court, N.H. Smith J., February 19, 2018. Digest No. TLD-April22018001