Family members and the estate of a deceased driver brought a negligence action arising from a fatal collision with a fire truck driven by a municipal firefighter responding to an emergency.
The defendants moved under Rule 21 to dismiss the claim against the firefighter, relying on statutory immunity under s. 74 of the Fire Prevention and Protection Act, 1997.
The plaintiffs sought leave to amend their statement of claim and argued that the statutory immunity constituted a defence rather than negating the existence of a cause of action.
The court held that the statutory protection for firefighters acting in good faith operates as a defence to be proven by the defendant and does not render the negligence claim legally untenable at the pleading stage.
Because it was not plain and obvious that the claim could not succeed, the motion to dismiss was refused.
