Gabriel v. Dimichele, 2026 NSCA 58
Reading Time: 4 minutes (approx.)
By: Sarah Richard
In this case, the Nova Scotia Court of Appeal considered whether multiple people could bring separate claims under the Fatal Injuries Act arising from the same deaths.
The case arose from a serious motor vehicle collision on October 21, 2023, which resulted in the deaths of Amanda Gabriel, her grandson and Ace Gabriel-Killen, and Ace’s father, Travis Killen. Amanda’s daughter, Sara Gabriel, was injured but survived.
Following the collision, multiple proceedings were commenced surrounding the deaths. Tammy Dimichele, Travis’ mother, commenced actions on behalf of the estates of Travis and Ace and for the benefit of those entitled to damages under the Fatal Injuries Act. Sara Gabriel and Adam Gabriel, Amanda’s husband, subsequently commenced separate proceedings on behalf of the estates of Travis and Ace.
Tammy brought a motion seeking, among other things, to be appointed as the representative plaintiff for Travis’s and Ace’s estates and to have the overlapping proceedings brought by Sara and Adam stayed. The chambers judge granted the motion and stayed the duplicate proceedings.
The Court of Appeal largely upheld that decision. It agreed that the Fatal Injuries Act contemplates a single action in respect of each deceased person, rather than separate actions by each person who may be entitled to damages. The Court considered that allowing multiple proceedings arising from the same death could result in duplication, inconsistent findings, increased costs, and inefficient use of judicial resources.
Importantly, staying the other proceedings did not mean that Sara or Adam lost their substantive rights to claim damages. Their potential claims could be included in the single proceeding concerning the relevant deceased person.
The Court also upheld Tammy’s appointment as representative plaintiff and found no sufficient conflict arising from her choice of counsel. The appellant had relied upon the case of Babineau et al v Estate of Crossman et al, 2020 NBQB 246, wherein the representative plaintiff and their counsel contested the claimant’s status as common law spouse. This resulted in a loss of confidence that his claim would be fully and forcefully advanced. With respect to Sara’s claim as common law spouse of Travis, and the appointment of Tammy as representative, the Court found that there was no conflict analogous to that in the case of Babineau.
In determining that Tammy was the appropriate party to appoint as representative, the Court maintained the view that ‘first to file’ was not a principled basis to determine the best representative. Rather, the discretion of the court was based upon Sara’s refusal to name her mother, Amanda, as a potential defendant. The Court held that this position had the potential to prejudice individuals for whose benefit the actions were brought and cited the chambers judge’s reasons which stated that it is reasonable and prudent of a representative to name all persons who could be found liable.
The chambers judge had also ordered the appellants to pay the legal fees of Tammy’s lawyer. The Court of Appeal found that the issue of counsel fees was premature and beyond the scope of the motion. The motion sought only to determine whether multiple actions were permissible and to appoint an appropriate representative, therefore no evidence or submissions with respect to legal fees had been presented to the chambers judge.
The main takeaway is that where multiple people have potential claims arising from the death of the same person under Nova Scotia’s Fatal Injuries Act, they cannot necessarily pursue separate proceedings. The claims are generally to be brought within a single action, with the various beneficiaries’ interests dealt with within that proceeding.
