Judge upholds family's lawsuit on behalf of dead daughter
CTV British Columbia
Published Friday, June 7, 2013 4:40PM PDT
Last Updated Friday, June 7, 2013 8:08PM PDT
A B.C. Supreme Court judge ruled Friday that a dead woman still has the right to sue, upholding a case with potentially massive legal implications.
Now Lisa Dudley’s mother is faced with the daunting task of taking legal action against the provincial and federal government on her deceased daughter’s behalf.
“I’m hoping that they will man up and realize that they have done something seriously wrong here,” Rosemari Surraka said. “Maybe, by allowing this to go through, somebody up there is asleep at the wheel and that they’re gonna wake up and do something right.”
Dudley died in her Mission home after she and her boyfriend were shot by an intruder in 2008.
Guthrie McKay died while Dudley was left paralyzed by a gunshot wound to the neck. She survived for four days before a neighbour found her sitting on a chair, then died en route to hospital.
A neighbour had called 911 after the shooting, but the RCMP officer who responded didn't even bother to get out of his car to investigate after arriving on scene.
Const. Mike White also failed to speak to the 911 complainant. At a disciplinary hearing, he was only docked a day’s pay for the incident and has since been promoted to Corporal. Adding insult to injury, the Surakkas obtained an audio recording of White laughing about the 911 call through a Freedom of Information Act request.
“That was the most disturbing – that somebody in the public service could actually think that six shots fired was funny,” Surakka said. “That would be my daughter, sitting in the chair, dying for four days.”
The mother launched a lawsuit against the provincial and federal government, saying Dudley was denied her Charter rights to life, liberty and security of person.
She is seeking damages, and a formal declaration that Dudley’s rights were violated.
Government lawyers argued Surakka’s lawsuit should be dismissed because Dudley’s right to sue died along with her.
The B.C. Supreme Court overturned that challenge Friday, and the Surakka’s will be back in court for a case that is far from over.
“For the reasons that follow, I cannot agree with the defendants that the plaintiff’s claim has no reasonable prospect of success,” Justice Heather Holmes wrote in her judgment.
Despite government lawyers citing a similar 1996 case in which a judge dismissed a lawsuit filed on behalf of a dead woman, Holmes said the Surakka’s case could only be struck if it was “plain and obvious that the claim has no reasonable prospect of success.”
“In my view, the plaintiff’s claim is precisely the type of novel but arguable claim that should survive a motion to strike on a generous approach,” she summarized.
Rosemari Surraka considers it a victory, despite the overwhelming process that lies ahead. “We were just elated. We were really happy,” she said. “We kind of have to live in the day. I don’t know what tomorrow will bring.”
“I think of this as just being one step in a long staircase – because it really is,” said Mark Surraka, Dudley’s stepfather. “I hope other people recognize that they can move ahead in a direction that will help them…it is a daunting task to go and confront the government, and the RCMP, and the coroner’s service.”
The decision is a significant one, setting a major precedent for families looking for recompense after a relative dies in controversial manner.
No court date has been set for the Surakka’s legal challenge.
One man has since pleaded guilty in Dudley’s murder, while two others await trial.
With a report from CTV British Columbia’s Lisa Rossington