Citation: Turner v. Halifax (Regional Municipality), 2009 NSCA 106
Date: 20091022
Docket: CA 308817
Registry: Halifax
Between:
Bryston David Turner
Appellant
v.
Halifax Regional Municipality, Anthony Blencowe
and The Attorney General of Canada
Respondents
Judges: Oland, Hamilton, Fichaud, JJ.A.
Appeal Heard: October 7, 2009, in Halifax, Nova Scotia
Held: Leave to appeal is granted, and the appeal is dismissed with costs per reasons for judgment of Fichaud, J.A.; Oland and Hamilton, JJ.A. concurring
Counsel: Mark T. Knox, for the appellant
Susan Taylor and Angela Green, for the respondent Attorney General of Canada
Reasons for judgment:
[1] Mr. Turner sued the Attorney General of Canada for negligent supervision of Mr. Turner’s parole suspension. The Attorney General applied for summary judgment to dismiss the claim. A judge of the Supreme Court of Nova Scotia allowed the Attorney General’s motion and dismissed Mr. Turner’s action. Mr. Turner appeals.
Background
[2] I refer to the facts set out in the chambers judge's decision.
[3] In July 2001, Mr. Turner was convicted of possession of narcotics for the purpose of trafficking. He was sentenced to four years custody in a federal institution, and began serving his sentence on July 25, 2001. On March 25, 2002, Mr. Turner began day parole and on November 24, 2002 he was placed on full parole. The Dartmouth Parole Office of Correctional Services Canada ("CSC") supervised his parole.
[4] On March 12 and 13, 2003, there were three incidents of a man assaulting women in parking lots of Halifax shopping centres, after the man suggested that the women's vehicles needed repair. On March 14, 2003, Detective Constable Jim Williams of the Halifax Regional Police asked CSC's Dartmouth Parole Office whether the perpetrator's description matched anyone on the Parole Office's files. He indicated he was looking for someone with mechanical skills and that there was a fraudulent element to the perpetrator's behaviour.
[5] CSC's Acting Senior Parole Officer Christine MacKenzie gave Det. Cst. Williams Mr. Turner's name. Ms. MacKenzie told him that an employee at the Railton House parole facility had paid Mr. Turner to repair her car, but Mr. Turner had not done the work. Later it appeared that this version was inaccurate.
[6] On March 14, 2003, the Halifax Regional Police arrested Mr. Turner and charged him with robbery, sexual assault and kidnapping. After the Dartmouth parole office was informed, Ms. MacKenzie suspended Mr. Turner's parole.
[7] The Correctional and Conditional Release Act, S.C. 1992, c. 20 prescribes an assessment after a parole suspension. Senior Parole Officer Dan Thorne performed the assessment. Mr. Thorne determined that Mr. Turner had done nothing inappropriate respecting the supposed Railton car repair incident. Mr. Thorne gave this information to the Halifax Regional Police and to the prosecutor handling Mr. Turner's case.
[8] On April 11, 2003, the charges were withdrawn. On the same day, Mr. Thorne cancelled Mr. Turner’s parole suspension.
[9] On October 7, 2003, Mr. Turner, in the Supreme Court of Nova Scotia, sued the Halifax Regional Police, a Halifax police officer and the Attorney General of Canada representing CSC. His Statement of Claim against the Attorney General cited causes of action for negligent misrepresentation, negligent supervision of Mr. Turner's parole suspension, malicious prosecution, bad faith supervision of Mr. Turner and violations of ss. 7, 9, 11 and 12 of the Charter of Rights.
[10] The Attorney General applied for summary judgment under the former Rule 13:01 and to strike Mr. Turner's claim under the former Rule 14.25(1). As noted in the chambers judge's decision, Mr. Turner's counsel agreed that his claims for negligent misrepresentation, malicious prosecution, bad faith and Charter relief should be struck or removed from his pleadings. So the remaining question for the chambers judge was whether to grant summary judgment dismissing Mr. Turner's claim that CSC negligently supervised his parole suspension.
[11] Justice Pickup heard the chambers application on January 14, 2009 and issued a written decision on January 30, 2009 (2009 NSSC 28). He allowed the Attorney General's application and granted summary judgment to dismiss Mr. Turner's negligence action against the Attorney General with $750 costs. Later I will discuss the judge's reasons.
[12] Mr. Turner applies for leave to appeal and, if granted, appeals. The other defendants, Halifax Regional Municipality and the police officer, did not participate in the appeal.
Issue and Standard of Review
[13] The issue is whether the chambers judge made an appealable error, under the standard of review, in his ruling that Mr. Turner's negligence claim against the Attorney General should be dismissed by summary judgment.
[14] As this court said in Frank v. Purdy Estate (1995), 142 N.S.R. (2d) 50, at ¶ 10, when the order under appeal has a terminating effect “the issue is whether there was an error of law resulting in an injustice.” An error of law that affects the result involves an injustice. Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44, ¶ 15.
Analysis
[15] The prerequisites for summary judgment to dismiss an action are first that the applying defendant shows there is no genuine issue of material fact requiring trial, and second that the responding plaintiff fails to show that his claim has a real chance of success. Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 38, at ¶ 9, per Cromwell, J.A., citing Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, at ¶ 27.
[16] The chambers judge cited that test. The question is whether he erred legally in its application.
[17] Mr. Turner acknowledged that the Attorney General has shown there is no genuine issue of material fact requiring trial. The parties agreed to the facts in the terms set out in the chambers judge's decision:
[15] To determine this issue, the parties have agreed that the following are the material facts:
a) Mr. Turner was on parole, according to the provisions of the Corrections and Conditional Release Act, s.c. 1992 c. 20.
b) The defendant, the Attorney General of Canada, represents Correctional Services Canada, which operates federal prisons and supervises parole, including that of Mr. Turner.
c) On March 14, 2003 Ms. Christine MacKenzie, an employee of Correctional Services Canada, contacted the Halifax Regional Police and advised:
- Mr. Turner was being supervised by the Dartmouth parole office; and
- the crimes being investigated by HRP fit the description of an act(s) previously committed by Mr. Turner while on parole.
d) Mr. Turner’s parole was reinstated after the charges against him were withdrawn.
e) Ms. MacKenzie provided erroneous information to HRP without reviewing/confirming the accuracy of the information.
f) Ms. MacKenzie failed to notify HRP that the initial information was incorrect.
g) The Attorney General of Canada cancelled the warrant of parole suspension when the charges were withdrawn.
h) Mr. Thorne, a senior parole officer with Correctional Services Canada at the time, notified Halifax Regional Police that the information was incorrect subsequent to March 26, 2003.
i) The evidence of Cst. Jim Williams of the Halifax Regional Police suggests that were two telephone calls between himself and Ms. MacKenzie; an initial call and a follow-up call.
j) Although the parole officer, Ms. MacKenzie, told the police officer that the crime fit the plaintiff’s description, she did not explain that the physical description of the unknown culprit did not match the physical description of Mr. Turner.
k) Ms. MacKenzie failed to explain to the police how she gathered her information that Mr. Turner had “ripped off” or “cheated” a “half-way house” employee. Ms. MacKenzie actually “cobbled together” a private comment made by a half-way house staff member to herself with a follow-up conversation with another parolee. Ms. MacKenzie never followed-up on this topic with the staff member.
[18] So the issue before the chambers judge was the second step of the summary judgment test - whether Mr. Turner showed that his claim for negligent supervision of his parole suspension has a real chance of success.
[19] As Justice Roscoe said in MacNeil v. Bethune, 2006 NSCA 21 at ¶ 33, "at the second step of the test, there is an evidential burden on the responding party to put his best foot forward or risk losing". Justice Roscoe adopted, as do I, the following passage from Marco Ltd. v. Newfoundland Processing Ltd., [1995] N.J. No. 168, 130 Nfld. & P.E.I.R. 317 (Nfld. T.D.):
76. . . . 7. If the applying party satisfies the threshold test for the application of the rule by putting forward an evidentiary basis for his or her position, the responding party then has an evidentiary burden to demonstrate that there is a genuine issue for trial. This cannot be accomplished by showing an issue raised by the pleadings. The argument on a Rule 17A application takes place at a level below the pleadings within the forums of evidence and legal argument. The responding party must therefore "put his best foot forward" since failure to do so may lead the court to conclude that there is in fact no genuine issue for trial. The responding party should therefore set out in affidavits, or answers given on interrogatories or oral discoveries, an evidentiary foundation for his or her case so that the court can see that there is a genuine issue of fact or law that is joined and has to be resolved before the court can make an ultimate determination on the merits.
[20] The chambers judge concluded that, for each of two reasons, Mr. Turner had not shown a real chance of success. First, he ruled that CSC, or the Attorney General on its behalf, had no duty of care to Mr Turner under the principles from Anns v. Merton London Borough Council, [1978] A.C. 728 and Cooper v. Hobart, [2001] 3 S.C.R. 537. Alternatively, he found that, even if there was a duty of care, there was no factual basis for a claim that CSC breached the duty and that Mr. Turner suffered resulting harm.
[21] In my view, it is unnecessary to consider the judge’s first reason - whether CSC owes a duty of care to Mr. Turner under the Anns principles. The judge's alternative reason exhibits no appealable error under the standard of review, and the appeal should be dismissed on that basis.
[22] Mr. Turner withdrew his claim for negligent misrepresentation. His sole claim, as stated in his Statement of Claim, is that CSC's employees were "negligent in supervising the Plaintiff's parole suspension". The chambers judge said:
[34] I agree with the Attorney General of Canada that the parole supervision resulted from the charges which were laid against Mr. Turner and upon those charges being dropped, the parole was reinstated immediately. While there is no dispute that Ms. MacKenzie provided inaccurate information, I am not able to conclude that this was the precipitating factor in causing the charges to be brought forward. Mr. Turner was charged on March 14, 2003. On April 11, 2003 the parole suspension was cancelled immediately after charges were withdrawn.
. . .
[44] One of the complaints by Mr. Turner is the time it took Correctional Services Canada to reinstate his parole after it was suspended. However, once the charges were dropped, his parole was reinstated.
[45] Mr. Turner complains that Ms. MacKenzie passed along incorrect information which was reported as factual to the police. The suspension of Mr. Turner’s parole was because of the charges laid by the Halifax Regional Police, not because of the information supplied by Ms. MacKenzie. Section 4(c) of the Corrections and Conditional Release Act mandates Correctional Services Canada to abide by the principle of “timely exchange of relevant information with other components of the criminal justice system”. When this information was released, it was part of Ms. MacKenzie’s duties, albeit, the information provided was inaccurate. As required by the Act, Mr. Thorne, on behalf of Correctional Services Canada, conducted a post-suspension investigation. Upon determining that the information provided by Ms. MacKenzie was inaccurate, he met with the Crown prosecutor and the Halifax Regional Police. Thereafter, the charges were withdrawn.
[23] I see no error of law or principle in the chambers judge's reasoning. Negligent misrepresentation is no longer claimed. CSC suspended parole after the Halifax Regional Police laid the charges. Then CSC conducted the review directed by the legislation, the review corrected the earlier error, CSC notified the police and prosecutor of the review's determination, and CSC reinstated parole promptly after the police withdrew the charges. These facts involve nothing by CSC even ostensibly negligent or harmful to Mr. Turner. There is no factual flesh to Mr. Turner’s bare negligence claim concerning CSC’s supervision of his parole suspension. The judge did not err by determining that Mr. Turner has no real chance of successfully persuading a trial court either that CSC breached any standard of care concerning the supervision of Mr. Turner's parole suspension, or that Mr. Turner suffered resulting harm.
Conclusion
[24] I would grant leave to appeal, but dismiss Mr. Turner's appeal with costs of $750 for the appeal payable to the Attorney General.
Fichaud, J.A.
Concurred in:
Oland, J.A.
Hamilton, J.A.