Mallett v McCaskill, 2016 MBCA 114

Citation: Mallett v McCaskill, 2016 MBCA 114 Date: 20161128 Docket: AI15-30-08431 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice William J. Burnett Madam Justice Janice L. leMaistre BETWEEN: SHARON MALLETT ) ) (Plaintiff) Appellant ) ) - and - ) R. I. Histed ) for the AppellantKEITH McCASKILL ) ) (Defendant) Respondent ) D. A.

Pambrun ) for the RespondentsAND BETWEEN: ) ) SHARON MALLETT ) Appeal heard and ) Decision pronounced: (Plaintiff) Appellant ) November 28, 2016 ) - and - ) ) CARRIE NASH, DALLAS VANNUS, ) NICHOLAS BISSON, BRIGETTE ) FRIEDENBERGER, ERIC WYTINCK, ) CONSTABLE VAN DEN DRIESSCHE, ) and GREGORY KAATZ ) ) (Defendants) Respondents ) On appeal from 2014 MBQB 227, 312 ManR (2d) 17 BURNETT JA (for the Court): [1] The plaintiff appeals the dismissal of her claims against the defendants the Chief of Police (in one claim) and variouspolice officers (in another claim).

The two claims were consolidated and heard as one action. [2] On two occasions, July 1 and July 16, 2008, the Winnipeg Police Service forced entry into the plaintiff’s home. Onboth occasions, the police attendance was precipitated by a 911 call. [3] The plaintiff sued in trespass, assault and battery, and breach of privacy, and she sought damages for a breach of herrights under

section 8 of the Canadian Charter of Rights and Freedoms (the Charter). This Court previously upheld the dismissal of herclaim for false imprisonment (see Mallett v McCaskill, 2012 MBCA 91, 284 ManR (2d) 239). [4] The trial judge did not believe the plaintiff and accepted the police officers’ evidence as to what occurred.

The trialjudge referred to R v Godoy, (SCC), [1999] 1 SCR 311, and he applied the so-called Waterfield/Dedman test (see R vWaterfield, [1963] 3 All ER 659 (CA (Eng)); and Dedman v The Queen et al, (SCC), [1985] 2 SCR 2). [5] The trial judge dismissed the claims for trespass, assault and battery because the police actions were lawful, and hedismissed the claim for breach of privacy on the basis that there was no invasion of privacy under The Privacy Act, CCSM c P125 (the

Act ) and that the defences under

section 5 of the Act applied. He dismissed the claim for damages under the Charter because that claim was not made against the state (i.e. the City of Winnipeg). His provisional award of damages was minimal. [ 6 ] The plaintiff raises four grounds of appeal. Her primary ground is that the trial judge failed to apply the correct legal test for exigent circumstances that would justify a warrantless entry.

The other grounds are that the trial judge erred in finding the actions of the police officers were reasonable, that he erred in his assessment of the evidence and conclusions of fact and, finally, that he erred in his assessment of damages. [ 7 ] The trial judge concluded that the actions of the police officers were lawful in that they were necessary, reasonable and justifiable in the circumstances. In our view, the trial judge correctly interpreted the law and applied that law to the facts as he found them.

We are not persuaded that he committed any error of law or any palpable and overriding error. [ 8 ] The appeal is therefore dismissed with costs. JA JA JA