GOLDEN ESTATE v NEILSON, 2011 ABCA 338
MCFADYEN, BERGER AND O'FERRALL JJA
5.17: People who may be questioned
The Public Trustee of Alberta, as the Personal Representative of the estate of the deceased, brought a Claim against the Appellants pursuant to the Fatal Accidents Act. The Appellants appealed the dismissal of their Application to compel the mother and spouse of the deceased to attend for Questioning pursuant to Rule 5.17.
The Court held that the Chambers Judge properly concluded that the deceased’s mother and spouse were Parties to the Action, despite the fact that they were not named in the style of cause. However, the Court further held that the Chambers Judge erred in determining that they were not “adverse in interest” to the Appellants because the mother and spouse of the deceased did not have a Cause of Action against the Appellants. The Court held that section 3(1) of the Fatal Accidents Act “expressly confers a cause of action on the spouse, parents and children of a deceased”. The Fatal Accidents Act provides that a Claim must be brought by the Executor or Administrator of the estate, unless there is none or the Executor or Administrator has not brought a Claim within one year. In such circumstances, the Action may be brought by the parents, spouse, or child of the person whose death was allegedly caused by the wrongful or negligent act.
The Court held that “parties on whose behalf a claim is brought under the Fatal Accidents Act, or who claim relief directly under the Fatal Accidents Act are parties adverse in interest to the party or parties whose negligence or wrongful acts are alleged to have caused the death… ”. The Court held that this finding was based on a “true parties” approach to the assessment of Questioning under the new Rules. The mother and spouse of the deceased were true Parties whose evidence would enhance speed, economy, fairness and disclosure.View CanLII Details