Paradis v DeGroot, 2023 ABKB 31

Court of King’s Bench of Alberta Citation: Paradis v DeGroot, 2023 ABKB 31 Date: 20230119 Docket: 1703 05500 Registry: Edmonton Between: Teresa Paradis Plaintiff - and - Karmen DeGroot, Brent Hawker, Matthew Maitre, Stacey Campbell, John Doe, Travis Ogilvie, Robin Alexander, Sue Wigle, Dr. Bamidele Adeagbo, the Chief Medical Examiner of Alberta, the Attorney General of Canada, and His Majesty the King in Right of Alberta Defendants _______________________________________________________ Memorandum of Decision of the Honourable Applications Judge B.W.

Summers _______________________________________________________ Introduction [ 1 ] In this Special Chambers Application, the Defendants apply to strike the Statement of Claim or to summarily dismiss the action. The primary issue in this case is whether those persons investigating a death (the Defendants) have a private law duty of care to the next of kin of the deceased (to the Plaintiff).

FACTS [ 2 ] On the evening of March 23, 2015, the High River detachment of the RCMP received a telephone call from Sonja Falkenberg that she had discovered her friend James Paradis deceased in his garage. [ 3 ] Members of the Okotoks Fire Department and an ambulance operator were first on the scene. When Constables Stacey Campbell, Karmen DeGroot and Matthew Maitre of the RCMP arrived on the scene they were advised that Mr. Paradis was deceased in the garage.

[ 4 ] There were four vehicles (an SUV, an ATV, a Quad and a riding mower) in the garage and a strong odour of exhaust fumes. Mr. Paradis was seated in a lawn chair with his feet on the tire of the Quad.

There were no signs of a struggle, no suicide note and there was a security system that had not been engaged. [ 5 ] Constable Maitre took a statement from Sonja Falkenberg which included facts that she did not notice any tracks in the driveway, found the door of the residence unlocked, entered the garage and observed that it was “hot and stinky”, noticed the interior lights of the SUV were on, noticed the key was in the ignition in the on position in the SUV, saw Mr. Paradis was cold and stiff and did not have a pulse and was not aware of Mr.

Paradis suffering from depression. [ 6 ] Constable Campbell called Medical Investigator Sue Wigle and provided information with respect to the RCMP’s investigation. The Office of the Chief Medical Examiner (“OCME”) provided authorization for Mr. Paradis’ body to be removed by a local funeral home. [ 7 ] On March 24, 2015, Constable DeGroot expressed her personal opinion to Mrs. Paradis that her husband had committed suicide. [ 8 ] On March 24, 2015 Dr, Adeagbo, of the OCME, conducted an external examination of Mr. Paradis’ body, reviewed toxicology reports that indicated Mr.

Paradis had a lethal level of carbon monoxide in his blood and reviewed information from Medical Investigator Sue Wigle. Dr. Adeagbo concluded that Mr. Paradis’ cause of death was carbon monoxide toxicity and the manner of death was suicide. [ 9 ] Mrs. Paradis wanted an autopsy done on her husband’s body. Her husband’s physician, Dr. Tristan Hembroff requested one. Dr. Adeagbo performed an autopsy on Mr. Paradis’ body on March 27, 2015. That autopsy did not change Dr. Adeagbo’s conclusions that the cause of death was carbon monoxide toxicity and the manner of death was suicide.

The Medical Examiner’s Certificate of Death stated these results. [ 10 ] On March 31, 2016, Mrs. Paradis filed a complaint about the RCMP’s investigation into her husband’s death under the Royal Canadian Mounted Police Act (“RCMP Act”). [ 11 ] On May 5, 2016 Mrs. Paradis filed an Originating Application in this Court seeking judicial review of the OCME’s conclusion that the manner of death of Mr. Paradis was suicide. In the Originating Application, Mrs. Paradis alleged that the investigation into her husband’s death was faulty in that key witnesses were not interviewed, the investigators failed to note that Mr.

Paradis had displayed no suicidal intentions and failed to consider other potential medical issues or a financial motive for homicide on the part of Mr. Paradis’ business partner. This action was discontinued on January 10, 2017. [ 12 ] Corporal Travis Ogilvie of the RCMP’s Nanton Detachment was tasked with reviewing Mrs. Paradis’ complaint under the RCMP Act . He recommended that in the future the High River Detachment take more statements and make better notes, but did not correct information that Mrs.

Paradis considered to be wrong (primarily dealing with whether vehicles in the garage had been running, whether they were capable of running and whether they had fuel in their tanks). [ 13 ] On June 9, 2016, Staff Sergeant Robin Alexander of the High River Detachment dismissed Mrs. Paradis’ allegations that the RCMP failed to conduct a thorough investigation and that they had pre-determined a conclusion. [ 14 ] Staff Sergeant Alexander found that Constable DeGroot was disrespectful in her communication on March 24, 2015 and apologized to Mrs.

Paradis for the distress that her comment had caused. [ 15 ] On August 23, 2016, Mrs. Paradis requested that the Civilian Review and Complaints Commission for the RCMP (“CRCC”) re-investigate Mrs. Paradis’ complaint and further complained about Staff Sergeant Alexander’s negligent investigation of Mrs. Paradis’ complaint. [ 16 ] On March 13, 2017 the CRCC released an interim report that stated: (1) the RCMP did not conduct a reasonably thorough investigation;

(2) Constable DeGroot misrepresented the status of the vehicles in the garage;

(3) Sergeant Brent Hawker tacitly approved the misrepresentation made by DeGroot to the medical examiner regarding the status of the vehicles in the garage; and

(4) Constable Ogilvie and Sergeant Alexander should have identified the failure to provide correct information and ensured that this issue was addressed in a meaningful fashion. The CRCC also recommended that the RCMP complete its investigation into Mr. Paradis’ death and provide complete and correct information to the OCME. A final report was issued by the CRCC that echoed the preliminary report. [ 17 ] On March 21, 2017 Mrs. Paradis commenced this action asserting negligence on the part of the Defendants in the investigation of Mr.

Paradis’ death and claimed for damages including aggravated and punitive damages in the amount of $1 million for intense mental pain and suffering, mental anguish, humiliation and injury to dignity, financial losses in the family business and the corporate business due to labelling the death as a suicide. The Statement of Claim also asked for a meaningful remedy to the Plaintiff pursuant to s 24 of the Charter of Rights and Freedoms (“ Charter ”). [ 18 ] On September 8, 2017 Dr.

Adeagbo prepared an Amended Confidential Autopsy Report where he opined that “without the presence of [a] suicide note or communication, supportive medical history or personal history of depression or self-arm (sic) behavior, the intention behind the circumstances of his death remains unclear” and amended the manner of death to “undetermined”. [ 19 ] Dr. Adeagbo submitted his case file on Mr. Paradis’ death to Dr. Elizabeth Brooks-Lim, who was the Chief Medical Examiner (“CME”) at the time. On September 13, 2017 Dr. Brooks-Lim completed her peer review which found Dr.

Adeagbo’s descriptions satisfactory, appropriate ancillary testing was performed, his report was free of major language errors and his conclusions on the manner and cause of death and other opinions were reasonable. [ 20 ] On November 17, 2021 Mrs. Paradis (hereinafter “Plaintiff”) amended her Statement of Claim to allege bad faith on the parts of Dr. Adeagbo and Dr. Brooks-Lim for publishing in the Journal of Forensic Scientists a case report on Mr. Paradis’ death, which stated

that the deceased’s manner of death was suicide (although the Amended Confidential Autopsy Report had previously been changed fromsuicide to “undetermined”). Issue [21] As indicated in the first paragraph of this Memorandum of Decision, the primary issue raised in this action is whether theDefendants owed to the Plaintiff a private law duty of care. Discussion The Defendants [22] The Defendants may be conveniently divided into two categories: the first seven Defendants, excluding “John Doe”, are allmembers of the RCMP who were either involved in the investigation of Mr.

Paradis’ death or reviewed the initial investigation. I willrefer to those six RCMP Defendants and the Attorney General of Canada as the “Federal Defendants”. I will collectively refer to the restof the Defendants as the “Provincial Defendants”. Concessions on behalf of the Plaintiff [23] The Plaintiff concedes that her claim for a remedy under subsection 24(1) of the Charter is deficient and may be struck. [24] The Plaintiff also acknowledges that her Amended Statement of Claim did not claim misfeasance in public office andconsequently any such claim is deficient and may be struck.

Summary Dismissal [25] Both the Federal Defendants and the Provincial Defendants apply for

summary dismissal of this action under and pursuant torule 7.3 of Alberta Rules of Court. The Provincial Defendants also applied to strike the Amended Statement of Claim under rule 3.68 ofAlberta Rules of Court. [26] With the concessions made by the Plaintiff, the only cause of action remaining against the Defendants is that they werenegligent in their respective roles with respect to investigating Mr. Paradis’ death. I will consider the Defendants’ contention that thisaction can and should be summarily dismissed under rule 7.3. [27] The leading case in Alberta with respect to whether a

summary determination can and should be made is Weir-JonesTechnical Services Inc v Purolator Courier Ltd, 2019 ABCA 49 (“Weir-Jones”). In that case the Alberta Court of Appeal summarizedthe key considerations as follows: [47] The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating tosummary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties.The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are: (

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on asummary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial? (

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and thatthere is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or theapplication will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication. (

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstratefrom the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying apositive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is agenuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available. (

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that heor she is prepared to exercise the judicial discretion to summarily resolve the dispute. To repeat, the analysis does not have to proceed sequentially, or in any particular order. The presiding judge may determine, during anystage of the analysis, that

summary adjudication is inappropriate or potentially unfair because the record is unsuitable, the issues are notamenable to

summary disposition, a

summary disposition may not lead to a “just result”, or there is a genuine issue requiring a trial. [28] In considering the applications of the Defendants for

summary dismissal, I will keep these key considerations in mind. Do the Defendants owe the Plaintiff a Private Law Duty of Care? [29] The Plaintiff acknowledges that her claim requires this Court to recognize a new duty of care. Consequently, the two-stagetest for determining whether a court should recognize a new duty of care set out in Cooper v Hobart, 2001 SCC 79, citing Anns vMerton London Borough Council, [1978] AC 728 and citing Kamloops (City of) v Nielsen, (SCC), [1984] 2 SCR 2

(“Anns Cooper Test”) must be considered. I set out in some detail the Supreme Court of Canada’s discussion on the test (at paragraphs30-39) as follows: 30 In brief compass, we suggest that at this stage in the evolution of the law, both in Canada and abroad, the Anns analysis is bestunderstood as follows.

At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeableconsequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the firstpart of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns testfocuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in thebroad sense of that word.

If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the secondstage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the partiesthat may negative the imposition of a duty of care. It may be, as the Privy Council suggests in Yuen Kun Yeu, that such considerationswill not often prevail.

However, we think it useful expressly to ask, before imposing a new duty of care, whether despite foreseeabilityand proximity of relationship, there are other policy reasons why the duty should not be imposed. 31 On the first branch of the Anns test, reasonable foreseeability of the harm must be supplemented by proximity. The question is whatis meant by proximity. Two things may be said. The first is that “proximity” is generally used in the authorities to characterize the typeof relationship in which a duty of care may arise.

The second is that sufficiently proximate relationships are identified through the use ofcategories. The categories are not closed and new categories of negligence may be introduced. But generally, proximity is established byreference to these categories.

This provides certainty to the law of negligence, while still permitting it to evolve to meet the needs of newcircumstances. 32 On the first point, it seems clear that the word “proximity” in connection with negligence has from the outset and throughout itshistory been used to describe the type of relationship in which a duty of care to guard against foreseeable negligence may be imposed.“Proximity” is the term used to describe the “close and direct” relationship that Lord Atkin described as necessary to grounding a duty ofcare in Donoghue v. Stevenson, supra, at pp. 580-81: Who then, in law is my neighbour?

The answer seems to be – persons who are so closely and directly affected by my act that I oughtreasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called inquestion. ...

I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it wasintended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to bebound to take care would know would be directly affected by his careless act. [Emphasis added.] 33 As this Court stated in Hercules Managements Ltd. v.

Ernst & Young, (SCC), [1997] 2 S.C.R. 165, at para. 24,per La Forest J.: The label “proximity”, as it was used by Lord Wilberforce in Anns, supra, was clearly intended to connote that the circumstances of therelationship inhering between the plaintiff and the defendant are of such a nature that the defendant may be said to be under an obligationto be mindful of the plaintiff’s legitimate interests in conducting his or her affairs. [Emphasis added.] 34 Defining the relationship may involve looking at expectations, representations, reliance, and the property or other interestsinvolved.

Essentially, these are factors that allow us to evaluate the closeness of the relationship between the plaintiff and the defendantand to determine whether it is just and fair having regard to that relationship to impose a duty of care in law upon the defendant. 35 The factors which may satisfy the requirement of proximity are diverse and depend on the circumstances of the case. One searchesin vain for a single unifying characteristic. As stated by McLachlin J. (as she then was) in Canadian National Railway Co. v.

NorskPacific Steamship Co., (SCC), [1992] 1 S.C.R. 1021, at p. 1151: “[p]roximity may be usefully viewed, not so much asa test in itself, but as a broad concept which is capable of subsuming different categories of cases involving different factors” (cited withapproval in Hercules Managements, supra, at para. 23). Lord Goff made the same point in Davis v. Radcliffe, [1990] 2 All E.R. 536(P.C.), at p. 540: . . . it is not desirable, at least in the present stage of development of the law, to attempt to state in broad general propositions thecircumstances in which such proximity may or may not be held to exist.

On the contrary, following the expression of opinion by BrennanJ in Sutherland Shire Council v Heyman (1985) 1988 ABCA 234 , 60 ALR 1 at 43-44, it is considered preferable that ‘the lawshould develop categories of negligence incrementally and by analogy with established categories’. 36 What then are the categories in which proximity has been recognized? First, of course, is the situation where the defendant’s actforeseeably causes physical harm to the plaintiff or the plaintiff’s property. This has been extended to nervous shock (see, for example,Alcock v.

Chief Constable of the South Yorkshire Police, [1991] 4 All E.R. 907 (H.L.)). Yet other categories are liability for negligentmisstatement: Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), and misfeasance in public office. A duty towarn of the risk of danger has been recognized: Rivtow Marine Ltd. v. Washington Iron Works, (SCC), [1974] S.C.R.1189. Again, a municipality has been held to owe a duty to prospective purchasers of real estate to inspect housing developments withoutnegligence: Anns, supra; Kamloops, supra.

Similarly, governmental authorities who have undertaken a policy of road maintenance havebeen held to owe a duty of care to execute the maintenance in a non-negligent manner: Just v. British Columbia, (SCC), [1989] 2 S.C.R. 1228, Swinamer v.

Nova Scotia (Attorney General), (SCC), [1994] 1 S.C.R. 445, etc.Relational economic loss (related to a contract’s performance) may give rise to a tort duty of care in certain situations, as where theclaimant has a possessory or proprietary interest in the property, the general average cases, and cases where the relationship between theclaimant and the property owner constitutes a joint venture: Norsk, supra; Bow Valley Husky (Bermuda) Ltd. v. Saint JohnShipbuilding Ltd., (SCC), [1997] 3 S.C.R. 1210.

When a case falls within one of these situations or an analogous oneand reasonable foreseeability is established, a prima facie duty of care may be posited.

37 This brings us to the second stage of the Anns test. As the majority of this Court held in Norsk, at p. 1155, residual policyconsiderations fall to be considered here. These are not concerned with the relationship between the parties, but with the effect ofrecognizing a duty of care on other legal obligations, the legal system and society more generally. Does the law already provide aremedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons ofbroad policy that suggest that the duty of care should not be recognized?

Following this approach, this Court declined to find liability inHercules Managements, supra, on the ground that to recognize a duty of care would raise the spectre of liability to an indeterminateclass of people. 38 It is at this second stage of the analysis that the distinction between government policy and execution of policy falls to beconsidered. It is established that government actors are not liable in negligence for policy decisions, but only operational decisions. Thebasis of this immunity is that policy is the prerogative of the elected Legislature.

It is inappropriate for courts to impose liability for theconsequences of a particular policy decision. On the other hand, a government actor may be liable in negligence for the manner in whichit executes or carries out the policy. In our view, the exclusion of liability for policy decisions is properly regarded as an application ofthe second stage of the Anns test. The exclusion does not relate to the relationship between the parties. Apart from the legalcharacterization of the government duty as a matter of policy, plaintiffs can and do recover.

The exclusion of liability is better viewed asan immunity imposed because of considerations outside the relationship for policy reasons – more precisely, because it is inappropriatefor courts to second-guess elected legislators on policy matters. Similar considerations may arise where the decision in question is quasi-judicial (see Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80). 39 The second step of Anns generally arises only in cases where the duty of care asserted does not fall within a recognized category ofrecovery.

Where it does, we may be satisfied that there are no overriding policy considerations that would negative the duty of care. Inthis sense, we agree with the Privy Council in Yuen Kun Yeu that the second stage of Anns will seldom arise and that questions ofliability will be determined primarily by reference to established and analogous categories of recovery. However, where a duty of care ina novel situation is alleged, as here, we believe it necessary to consider both steps of the Anns test as discussed above.

This ensures thatbefore a duty of care is imposed in a new situation, not only are foreseeability and relational proximity present, but there are no broaderconsiderations that would make imposition of a duty of care unwise. [30] The Plaintiff argues that the individual Defendants (other than RCMP officers Travis Ogilvie and Robin Alexander, whoconducted reviews of the investigation) all had legal responsibilities under Alberta’s Fatality Inquiries Act with respect to the death ofMr. Paradis.

More specifically: Dr Adeagbo was responsible for investigating and determining the manner of death; Sue Wigle wasresponsible for helping Dr. Adeagbo in his duty to investigate the death; and the RCMP Defendants DeGroot, Hawker, Maitre andCampbell had the same responsibility as Wigle as agent for the OCME. [31] The Plaintiff also asserts that as Mr.

Paradis’ next of kin, who has the right to request an investigation review before theFatality Review Board, the Plaintiff was an interested party in the investigation. [32] The Plaintiff concludes on this point that given the Defendants’ legal responsibilities and the Plaintiff’s rights as an interestedparty under the Fatality Inquiries Act creates a relationship of proximity and consequently gives rise to a prima facie duty of care. [33] Canadian law does not recognize a nominate tort of breach of statutory duty: The Queen (Can) v Saskatchewan Wheat Pool, (SCC), [1983] 1 SCR 205 and Holland v Saskatchewan, [2008] 2008 SCR 551. [34] In the case of Wu v Vancouver (City), 2019 BCCA 23 (“Wu”), the British Columbia Court of Appeal explained why it wasdifficult to find a private law duty of care being owed by public officials exercising statutory authority: [53] Some general principles apply to the recognition of prima facie private law duties of care owed by public regulators to privateparties. [54] First, it is possible that a private law duty of care may arise explicitly or by necessary implication from a statutory scheme: see R. v.Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 43.

The existence of a statutory scheme of regulation does not foreclose thepossibility of finding proximity. [55] Second, while a scheme of statutory regulation may be relevant to whether proximity exists, generally the existence of such ascheme is insufficient to support a finding of proximity. The Supreme Court of Canada appears to have moved beyond its statement inEdwards v. Law Society of Upper Canada, 2001 SCC 80 at para. 9, that factors giving rise to proximity must be grounded in thegoverning statute if one exists. More recently, in Reference re Broome v.

Prince Edward Island, 2010 SCC 11, Justice Cromwellobserved that statutory duties “do not generally, in and of themselves, give rise to private law duties of care”: at para. 13. A similar viewis found in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24. In that case, the Chief Justice, endorsing Broome, reasoned that“[w]here the defendant is a public body, inferring a private duty of care from statutory duties may be difficult, and must respect theparticular constitutional role of those institutions”: Alberta at para. 74. Much the same view was articulated in Imperial Tobacco.

In thatcase, the Court noted “[i]t may be difficult to find that a statute creates sufficient proximity to give rise to a duty of care”: at para. 44. [56] Third, a principal reason why public law duties are, standing alone, generally insufficient to create proximity is because statutoryschemes generally exist to promote the public good. To the extent that one conceives the issue as a matter of legislative intent, as theSupreme Court of Canada noted in Imperial Tobacco, it is difficult to infer that a legislature intended to create a private law duty where ascheme is aimed at a public good: at para. 44.

Viewed in this way, the question is whether the legislature intended as a positive matter tocreate a private law duty notwithstanding that the scheme is aimed at promoting the public good. The basic proposition remains,however, that a public law duty aimed at the public good does not generally provide a sufficient basis to create proximity with individualsaffected by the scheme. This is so, even if a potential claimant is a person who benefits from the proper implementation of the scheme.This proposition is illustrated by numerous cases including Cooper, Gill v.

Canada (Minister of Transport), 2015 BCCA 344, ImperialTobacco, and Elder Advocates, to name just a few. [57] Fourth, where a conflict arises between a potential private law duty and the public authority’s duty to the public, the private lawduty would unlikely be recognized. This is so whether the issue is viewed as one of proximity or as a policy reason to negate a duty. This

principle has been engaged in a number of cases, see for example, Imperial Tobacco, Cooper, Gill, Los Angeles Salad. [58] What I take from these broad principles is that, as a general proposition subject only to arguably rare exceptions, statutory duties owed by public authorities are insufficient to ground private law duties arising out of interactions that are inherent in the exercise of the public law duty. Indeed, it is difficult to convert public law duties into private law duties where those public law duties exist to promote a public good.

Generally, discharging public law duties does not give rise to a private law duty of care to particular individuals. [ 35 ] The Fatality Inquiries Act has a public interest purpose. The Chief Medical Officer is responsible to report, investigate and record deaths in Alberta. This is a responsibility to the public. That public responsibility is specifically reflected in the following key portions of that Act : 5(4) The Chief Medical Examiner is responsible to the Minister for (

a) the operation of this Act in relation to the reporting, investigating and recording of deaths, (

b) the supervision of medical examiners in the performance of their duties, (

c) the development and maintenance of facilities that may be required, (

d) the education of persons required to perform functions under this Act, and (

e) the inspection of medical certificates of death in all cases where burial permits are issued pursuant to the Vital Statistics Act. ... Duties of medical examiner 19(1) If a medical examiner receives notification of a death and is satisfied that the death occurred under any of the circumstances referred to in

section 10, 11, 12, 13 or 17, the medical examiner shall investigate the death and establish where possible (

a) the identity of the deceased, (

b) the date, time and place of death, (

c) the circumstances under which the death occurred, (

d) the cause of death, and (

e) the manner of death.

(1.1) Where the Minister makes an order under

section 14.1, the Chief Medical Examiner shall, in investigating the death, establish, where possible, the matters set out in subsection (1).

(2) Notwithstanding subsection (1), when a medical examiner is unable to investigate a death of which the medical examiner receives notification, the medical examiner shall (

a) notify another medical examiner if the death occurred under any of the circumstances referred to in

section 10, 11, 12, 13 or 17, and (

b) keep a record of the death including the reasons why the death was not investigated by the medical examiner.

(3) A medical examiner shall keep a record of all deaths of which the medical examiner is notified pursuant to this Act or the Vital Statistics Act and shall immediately report to the Chief Medical Examiner all investigations that the medical examiner or an investigator under the medical examiner’s supervision make into a death.

(4) When a medical examiner has investigated a death and has determined the manner of death and the cause of death, the medical examiner shall immediately, in addition to making a report under subsection (3), complete a medical certificate of death in accordance with the Vital Statistics Act.

(5) Notwithstanding subsection (1), a medical examiner is not required to investigate a death that occurred through natural causes or in the circumstances described in section 10(2)(f)(

i) or (ii) if (

a) a physician is able to certify the information in subsection (6)(

a) to (e), and (

b) the medical examiner is satisfied that an investigation is not required.

(6) A medical examiner who does not investigate a death under subsection (5) shall, based on information provided by the physician, record (

a) the identity of the deceased; (

b) the date, time and place of death;

(

c) the circumstances under which the death occurred; (

d) the cause of death; (

e) the manner of death; (

f) the name of the physician who provided the information.

(7) If a medical examiner does not conduct an investigation under subsection (5), the physician is authorized to complete and sign the medical certificate of death referred to in

section 33 of the Vital Statistics Act . Investigation or autopsy 20 The Chief Medical Examiner may at any time (

a) direct a medical examiner to make an investigation into any death at any place in Alberta, or (

b) authorize an autopsy of the body of any person who died under the circumstances described in

section 10, 11, 12 or 13. Powers of medical examiner or investigator 21(1) A medical examiner or an investigator acting under the medical examiner’s authorization may, in performing the medical examiner’s or investigator’s duties under this Act, (

a) without a warrant, enter any place where the medical examiner or investigator believes, on reasonable and probable grounds, a body that is the subject of an investigation is located or has been located; (

b) without a warrant, take possession of anything that may be directly related to the death and may place anything seized into the custody of a peace officer; (

c) cordon off or secure the scene or area in which the death under investigation occurred for a period not exceeding 48 hours or any extended period that the Chief Medical Examiner may authorize; (

d) with the approval of the Chief Medical Examiner, obtain services or retain expert assistance for any part of the medical examiner’s or investigator’s investigation.

(2) When a medical examiner or an investigator seizes anything under subsection (1)(b), the medical examiner or investigator or the peace officer who has custody of it shall retain it until the conclusion of any investigation or public fatality inquiry into the death or until the thing seized is no longer required and then shall return it to the person from whom it was seized or, if that person is deceased, to the personal representative of that person.

(3) Notwithstanding any other Act, regulation or other law, a medical examiner is entitled to inspect and make copies of any diagnosis, record or information relating to (

a) person receiving diagnostic and treatment services in a diagnostic and treatment centre under the Mental Health Act, or (

b) a patient under the Hospitals Act. Possession and release of body 22(1) When a medical examiner conducts an investigation into a death pursuant to this Act, the medical examiner is deemed to take possession of the body at the time the medical examiner receives the notification.

(2) As soon as possible after taking possession of the body, the medical examiner shall sign a notice in the form prescribed by the Chief Medical Examiner and cause it to be affixed to the body or the shroud, garment or container holding the body.

(3) Failure to sign or affix the notice under subsection (2) does not affect the right of the medical examiner to take possession of the body.

(4) A medical examiner may carry out examinations of the body.

(5) The medical examiner may release the body for burial or other disposition when possession of the body is no longer required for the purposes of this Act. [ 36 ] In my view, the suggestion that the Chief Medical Examiner, or anyone acting under the authority of the Fatality Inquiries Act has a private law duty to any individual is completely antithetical to the purpose of this legislation. Not only must the Chief Medical Examiner’s primary duty be to the public, it must be his or her only duty.

The thought that the Chief Medical Officer or anyone acting under the authority of the Act must keep in mind a responsibility to any particular private individual when carrying out his or her public function, would undermine the very purpose of the legislation. [ 37 ] The foregoing analysis not only explains why an individual does not have proximity to expect a private law duty of care from the Chief Medical Examiner, or anyone acting in authority under the Fatality Inquiries Act , but also applies to the second part of the Anns test.

That is, there is a policy reason that a private law duty of care should not be imposed with respect to the responsibility to carry

out this legislative function. [ 38 ] I disagree with the Plaintiff that because of her interactions with those investigating her husband’s death, she has proximity. This would provide proximity to everyone who was questioned or contacted by the police or anyone acting under the Fatality Inquiries Act . This could create the spectre of unlimited liability to an unlimited class—which is a concern recognized in the second part of the Anns test. [ 39 ] I disagree with the Plaintiff that just because she is the next of kin of Mr. Paradis and could request an investigation review under section 32(1)(

d) of the Fatality Inquiries Act the legislature intended to create proximity and impose a private law duty of care. [ 40 ] Counsel for the Federal Defendants also refers to a substantial body of case law that stands for the proposition that the tort of negligent investigation does not apply to the relationship between the police and the family of a suspect or victim.

Rather, courts across Canada have explicitly and repeatedly held that the tort of negligent investigation only applies to targeted suspects and a very small subset of victims. see Odhavji Estate v Woodhouse , 2003 SCC 69 ; Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 ; Thompson v Webber, 2010 BCCA 308 ; Wellington v Ontario, 2011 ONCA 274 . [ 41 ] More specifically, in the case of Connelly v Toronto (Police Service Board), 2018 ONCA 368 (leave to appeal denied by SCC), the Ontario Court of Appeal stated (at paragraphs 6 and 7): [6] Turning to the substance of the appeal, further to the concession by counsel for the appellants, we concur entirely with the motion judge’s reasons for his decision.

That is, Wellington provides a full answer to the appellants’ appeal. As the motion judge held at para. 10 of his reasons: … [W]hile the police owe a duty of care to suspects and to a narrow and distinct group of potential victims of a specific threat, the police do not owe victims of crime and their families a private law duty of care in relation to the investigation of alleged crimes: Wellington , at para. 20 . Nor does a parent’s desire for a thorough police investigation give rise to a relationship of proximity sufficient to ground an action for damages in tort: Wellington , at para. 33 .

It is clear that the duty being put forward in this case is not novel. It has already been excluded. [7] Despite the appellants’ attempts to characterize their claim as novel, their claim of negligence against the police is not. The law is clear; the police do not owe them a duty of care as the family members of a victim of a potential crime. As the motion judge correctly concluded, it is a category that has already been considered and rejected: see Hill v.

Hamilton-Wentworth (Regional Municipality) Police Services Board , 2007 SCC 41 at paras. 27 and 45 . [ 42 ] Whether or not the alleged duty of care with respect to the investigation of Mr. Paradis’ death is considered novel and subject to the Anns test, or whether it has already been considered as part of a duty of care with respect to police investigation, I conclude that none of the Defendants owes a private law duty of care to the Plaintiff.

As stated in Wu (at paragraph 58 ): Indeed, it is difficult to convert public law duties into private law duties where those public law duties exist to promote a public good. Generally, discharging public law duties does not give rise to a private law duty of care to particular individuals. [ 43 ] If there is an exception to this general principle of law, the investigation of a death under and pursuant to statute is not one of them. Conclusion [ 44 ] Keeping in mind the principles set out in Weir-Jones , I am of the view that this case can and should be decided summarily.

The case is decided strictly on a principle of law. In that respect, there are no issues of contentious fact to be considered. The applications of the Federal Defendants and the Provincial Defendants for

summary dismissal are granted. [ 45 ] If costs need to be spoken to, that may be done before me in morning chambers. Heard on the 12 th day of October, 2022. Dated at the City of Edmonton, Alberta this 19 th day of January, 2023. B.W. Summers A.J.C.K.B.A.

Appearances: Thomas M. Engel and Chris Wiebe Engel Law Office for the Plaintiff Daniel Vassberg Department of Justice Canada for the Federal Defendants Hillary M. Flaherty Alberta Justice and Solicitor General for the Provincial Defendants