Nova Scotia Court of Appeal confirms chosen representative counsel but defers legal fee issue
In proceedings involving a collision that took three lives, the Nova Scotia Court of Appeal upheld a judge’s stay of duplicative fatal injury actions based on his interpretation of the province’s Fatal Injuries Act, 1989, which allowed only one action per fatality.
The case was Gabriel v. Dimichele, 2026 NSCA 58. On Oct. 21, 2023, Amanda Gabriel was driving a vehicle with three passengers: her daughter Sara Gabriel, her grandson Ace Gabriel-Killen, and Ace’s father, Travis Killen.
Allegedly, a vehicle operated by Tyler Strong tried to overtake the vehicle driven by Amanda while she was making a left-hand turn. Apart from injuring Sara in the front seat, the collision proved fatal for Amanda, Ace, and Travis.
Fatal injury actions filed
Multiple legal proceedings followed, including fatal injury actions for the three deceased. In the fatal injury action for Amanda, the representative plaintiff was Adam Gabriel, her husband and her estate’s appointed representative.
Meanwhile, Travis’ and Ace’s estates had no executor, administrator, or personal representative. Tammy Dimichele, Travis’ mother and Ace’s paternal grandmother, commenced two actions.
On Dec. 13, 2023, Tammy brought the first action against Amanda’s estate, Tyler, and Enterprise Rent-A-Car Canada, which owned the vehicle Tyler was driving. As the plaintiff, Tammy filed this action:
- on behalf of Travis’ estate under Nova Scotia’s Survival of Actions Act, 1989
- on her own behalf and for the benefit of four other claimants under s. 4(2) of the Fatal Injuries Act
On Sept. 12, 2024, Tammy brought the second action against the same defendants. As the plaintiff on behalf of Ace’s estate under the Survival of Actions Act, Tammy filed this action for the benefit of herself, her husband, and “all beneficiaries entitled to damages pursuant to the Fatal Injuries Act.”
On the other hand, Sara initiated two actions on Oct. 16, 2024.
Sara’s first action claimed damages from Tyler and Enterprise Rent-A-Car Canada under the Survival of Actions Act and the Fatal Injuries Act. As the plaintiff on behalf of Travis’ estate and “in her own right,” she asserted a common law relationship with him at the time of his death.
In the second action filed on Oct. 16, 2024, Sara and Adam claimed damages on behalf of Ace’s estate from the same defendants.
Stay of duplicative claims
In a motion, Tammy sought:
- the confirmation of her appointment as Travis’ and Ace’s estate representative and of her carriage of all fatal injury actions
- the discontinuance of the duplicative claims filed by Sara and Adam
- the addition of Sara’s and Adam’s claims to her actions
- the confirmation of her chosen lawyer as solicitor of record for the litigation
On Sept. 12, 2025, Justice Scott Norton appointed Tammy as representative plaintiff, allowed her actions to proceed, stayed the duplicative claims, and ordered the amendment of Tammy’s actions to include Sara’s and Adam’s fatal injury claims.
The chambers judge determined that all fatal injury claims should proceed via a single action.
Tammy’s counsel drafted an order. Even though the appellants opposed paragraph 8 regarding the payment of counsel fees, the chambers judge included the disputed paragraph in the order.
Nova Scotia Court of Appeal ruling
Adam and Sara appealed from the chambers judge’s decision.
The Nova Scotia Court of Appeal granted them leave to appeal, partly allowed their appeal to vacate paragraph 8 concerning legal fees, affirmed the judge’s order in all other respects, and ordered no costs in the circumstances of the appeal.
Interpretation of Fatal Injuries Act
The Nova Scotia Court of Appeal affirmed the judge’s:
- interpretation of the Fatal Injuries Act, which permitted only a single action for each fatality to prevent the multiplicity of proceedings and to encourage procedural efficiency
- stay of the appellants’ duplicative actions
- issuance of corollary directions
The appeal court saw no application of wrong principles or patent injustice in the judge’s decision. The appeal court added that Nova Scotia law did not support the appellants’ arguments in favour of separate actions.
Representative plaintiff and counsel
The Nova Scotia Court of Appeal found no reason to interfere with Tammy’s appointment as representative plaintiff of the fatal injury actions. The appeal court noted that Tammy included all possible defendants, unlike the appellants, who did not name Amanda's estate.
The appeal court also saw no conflict of interest with Tammy’s preferred lawyer.
Legal fees
The Nova Scotia Court of Appeal ruled that the judge prematurely decided the issue of counsel fees, which was beyond the motion’s scope, and thus wrongly ordered the appellants to pay legal fees to Tammy’s lawyer.
The appeal court left the question of representative counsel’s fees for a determination at an appropriate time under the Civil Procedure Rules.
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