2011 FC, 2011 FC 1440

Date: 20111208 Docket: T-1577-11 Citation: 2011 FC 1440 Vancouver, British Columbia , December 8, 2011 PRESENT: The Honourable Mr. Justice Harrington ADMIRALTY ACTION IN REM and IN PERSONAM BETWEEN: ALAN TONEY, YVONNE TONEY, and COURTNEY TONEY & REBECCA TONEY AS REPRESENTED BY THEIR LITIGATION GUARDIAN ALAN TONEY Plaintiffs and HER MAJESTY THE QUEEN IN RIGHT OF CANADA IN THE NAME OF THE ROYAL CANADIAN MOUNTED POLICE, and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ALBERTA AS REPRESENTED BY THE MINISTER OF SUSTAINABLE RESOURCE DEVELOPMENT, and THE CANADIAN SHIP BEARING LICENCE NO.

AB1275024 Defendants REASONS FOR ORDER AND ORDER [ 1 ] The Plaintiffs have taken action in this Court for damages arising from the death of young Janessa Lynn Toney, their daughter and sister. Young Janessa Lynn died following a boating accident in Lake Newell, near Brooks, Alberta . The date was September 27, 2008. [ 2 ] It is alleged that the Defendants owed search and rescue duties and failed in that regard. The Plaintiffs seek damages under various headings.

Without restricting the generality of the foregoing, they seek bereavement damages pursuant to the Alberta Fatal Accidents Act . [ 3 ] The “ Alberta ” Defendants have moved to have the action struck against them in personam and against the ship in rem . Although it is admitted that the ship was owned by Her Majesty the Queen in Right of Alberta at the time of the incident, it had been

sold prior to the commencement of the action. Since the claim did not carry with it a maritime lien, there is no action in rem. There is noaction in personam over the provincial crown. [4] The two “federal” Defendants have moved for a stay of the action, allowing the Plaintiffs to recommence in a provincialcourt, otherwise striking the action in whole or in part under Rule 221(1)(

f) of the Federal Courts Rules as being an abuse of the processof this Court. [5] Both motions shall be dismissed, save that the action in rem is struck, as ownership had not remained the same between thetime the cause of action arose and the commencement of the action as required by

section 43 of the Federal Courts Act. Otherwise, thisis as maritime an action as one could have. The cause of action is grounded in sections 6 and following of the Marine Liability Act, SC,2001, c 6. The fact that the ship has been sold by the provincial crown does not shield it from personal liability. This action falls withinthe federal legislative class of action of navigation and shipping, there is actual federal law to administer, and the administration of thatlaw has been confided to this Court pursuant to

section 22 of the Federal Courts Act (ITO-Internatinal Terminal Operators Ltd v MiidaElectronics Inc, (SCC), [1986] 1 SCR 752). The fact that one of the Defendants is a provincial crown is irrelevant as thisis not an action against the crown as such under

section 17 of the Federal Courts Act. [6] There is nothing vexatious about the action as pleaded. Pursuant to Rule 221, an action is not dismissed unless it is plain andobvious that the case is bereft of a chance of success. Furthermore, the facts alleged are taken to be true (Hunt v Carey Canada Inc), (SCC), [1990] 2 SCR 959 and Operation Dismantle Inc v Canada, (SCC), [1985] 1 SCR 441). TheDefendants have not alleged that the claim is time-barred in accordance with

section 14 of the Marine Liability Act. ORDER For the reasons given, THIS COURT ORDERS that: 1. The motions are dismissed, save that the action is dismissed in rem; 2. The in personam Defendants shall have until January 11, 2012, to file their statements of defence; and 3. Costs in the cause. “Sean Harrington” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1577-11 STYLE OF CAUSE: ALAN TONEY et al v HER MAJESTY THE QUEEN IN RIGHT OF CANADA IN THE NAMEOF THE ROYAL CANADIAN MOUNTED POLICE et al

MOTION IN WRITING CONSIDERED AT VANCOUVER, BRITISH COLUMBIA , PURSUANT TO RULE 369 REASONS FOR ORDER AND ORDER: HARRINGTON J. DATED: December 8, 2011 WRITTEN REPRESENTATIONS : Darren Williams FOR THE PLAINTIFFS Bruce Hughson FOR THE DEFENDANTS HMTQ Canada and the RCMP Marta Burns FOR THE DEFENDANTS HMTQ Alberta and the Minister of Sustainable Resource Development SOLICITORS OF RECORD : Merchant Law Group LLP Victoria, BC FOR THE PLAINTIFFS Myles J. Kirvan Deputy Attorney General of Canada Edmonton , AB FOR THE DEFENDANTS HMTQ Canada and the RCMP Alberta Justice Legal Services Edmonton, AB FOR THE DEFENDANTS HMTQ Alberta and the Minister of Sustainable Resource Development