IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | C.D. v. Canada (Attorney General), |
| 2013 BCSC 919 |
Date: 20130527
Docket: 15740
Registry:
Smithers
Between:
C.D.
Plaintiff
And
Attorney General of
Canada as represented by the Royal Canadian Mounted Police and Her Majesty the
Queen in Right of the Province of British Columbia as represented by the
Minister of Child and Family Development
Defendants
AND
Docket: 15732
Registry:
Smithers
Between:
C.D.
Plaintiff
And
Peter
Cunningham, Gretchen Woodman, Jeffery Foreman, Breanne Brown,
Jack Kinnear, Kirsten Miller, Sandra Lamb, Jamie Wenger, Quintin Smith
Defendants
Before:
The Honourable Mr. Justice R. Punnett
Reasons for Judgment
Counsel for the Plaintiff: | H. L. Gansner |
Counsel for the Defendants Her Majesty the Queen as | M.N. Weintraub |
Counsel for the Defendants Breanne Brown, Quintin Smith Place and Date of Hearing: | E.L. Smithers, B.C. February 12, 2013 April 5, 2013 |
Written Written Written reply of the | |
Place and Date of Judgment: | Smithers, B.C. May 27, 2013 |
[1]
The plaintiff has commenced two actions in negligence against social
workers and Royal Canadian Mounted Police (RCMP) officers relating to an
investigation of allegations of sexual assault against her.
[2]
Action 15740 against the Crown relates to child protection decisions
made that arose from the sexual assault allegations. Action 15732 is a parallel
action that names the individual social workers and RCMP officers as
defendants.
[3]
The various defendants in the two actions make applications to have the
claims against them struck or dismissed.
Background
[4]
The plaintiff had sole custody of two children. There were ongoing
custody and access disputes with her former spouse. One or both of the children
made allegations of sexual abuse against the plaintiff. The plaintiff alleges
the named social workers were tasked with investigating the complaints.
[5]
The RCMP became involved. The plaintiff was arrested, held and then
released on a no contact order respecting the children. The children whom the
plaintiff was alleged to have sexually assaulted were subsequently returned to
the plaintiffs ex-husband where they were severely abused in November 2009.
[6]
The plaintiff alleges that the Province through the Ministry of Child
and Family Development and its employees owed a duty of care to a suspect
parent such as the plaintiff.
[7]
The allegations against the individual RCMP officers are, inter alia,
that the defendants Jamie Wenger, Breanne Brown and Quintin Smith were
negligent in investigating sexual assault complaints against the plaintiff,
complaints that led to the plaintiffs arrest and subsequent detention. The
plaintiff alleges the allegations were unfounded and that the RCMP failed to
undertake a proper investigation of the possibility the allegations were
unfounded.
[8]
The Attorney General of Canada has been named as a party but has not
been served. In fact the Attorney General is not the appropriate party. There
is no application to amend, but plaintiffs counsel advises they have
instructions to make such an application and will do so in due course.
The Applications
[9]
There are three applications before me.
[10]
The first is that of Her Majesty the Queen in Right of the Province of
British Columbia. She seeks to have the claims against her dismissed in their
entirety on the basis that they disclose no reasonable claim.
[11]
The second is that of the social workers Peter Cunningham,
Gretchen Woodman, Jeffery Foreman and Jack Kinnear. They seek to have the
plaintiffs claim against them dismissed in its entirety on the basis that the notice
of civil claim discloses no reasonable claim.
[12]
The third is the application of the defendant RCMP officers Brown,
Wenger and Smith. They seek an order that the claims against them be struck or
dismissed, or, in the alternative, that the plaintiff amends her pleadings to
state for each cause of action raised the facts necessary to support the cause
of action.
Application of the Province and Social Workers
[13]
The Province and the defendant social workers apply pursuant to Rule
9-5(1)(a) to strike the amended notice of civil claim as disclosing no
reasonable claim. They submit that the Province and social workers have an
overriding mandate of child protection under the Child, Family and Community
Service Act, R.S.B.C. 1996, c. 46 (CFCSA) that precludes a private
law duty of care to parents or other family members of children. They submit
that as a matter of law there can be no duty of care in the circumstances and
hence no cause of action in negligence against the Crown or its employees.
Legal Test
[14]
The test for striking a pleading under Rule 9-5(1) is that a claim will
only be struck if it is plain and obvious, assuming the facts pleaded to be
true, that the pleading discloses no reasonable cause of action that is, the
claim has no reasonable prospect of success (R. v. Imperial Tobacco Canada
Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 17).
[15]
The function of pleadings is to clearly define the issues of fact and
law that the court will be addressing. The claimant must plead the material
facts upon which it relies. Material facts are those facts necessary for the purpose
of formulating a complete cause of action (Homalco Indian Band v. British
Columbia (1998), 56 B.C.L.R. (3d) 114 (S.C.)).
Discussion
[16]
The plaintiffs claim is in negligence. She must plead material facts on
which the court could find that the defendants owed a duty of care to her, that
the defendants breached the relevant standard of care and that the breach of
duty caused damage to her.
[17]
A duty of care requires both foreseeable harm and a close and direct
relationship of proximity or neighbourhood. (Cooper v. Hobart, 2001 SCC
79, [2001] 3 S.C.R. 537 para. 22).
[18]
As noted in Cooper at para. 24:
24 In Anns, supra,
a pp. 751-52, the House of Lords, per Lord Wilberforce, said that a duty
of care required a finding of proximity sufficient to create a prima facie
duty of care, followed by consideration of whether there were any factors
negativing that duty of care. This Court has repeatedly affirmed that approach
as appropriate in the Canadian context.
[19]
The involvement of the Ministry and the individual social workers arises
from the CFCSA, the source of their duty to investigate. But for the CFCSA
they would be in no different position that the ordinary man or woman on the
street. (Cooper, para. 43). In Cooper where the plaintiff
sought to impose a duty on the Registrar of Mortgage Brokers, the Court at para.
42 noted:
42 … mere foreseeability
is not enough to establish a prima facie duty of care. The plaintiffs
must also show proximity — that the Registrar was in a close and direct relationship
to them making it just to impose a duty of care upon him toward the plaintiffs.
In addition to showing foreseeability, the plaintiffs must point to factors
arising from the circumstances of the relationship that impose a duty.
[20]
Turning firstly to the application of the Crown, the plaintiff pleads
that the Province owes a duty of care to a parent it is investigating for
allegations of abuse against that parents children.
[21]
As noted the duty of care arises from the CFSCA. The CFSCA
provides:
2 This Act must be interpreted and
administered so that the safety and well-being of children are the paramount
considerations and in accordance with the following principles:
(a) children are entitled to be
protected from abuse, neglect and harm or threat of harm;
4(1) Where there is a reference in this Act to
the best interests of a child, all relevant factors must be considered in
determining the childs best interests, including for example:
(a) the childs safety;
101 No person is personally liable for anything
done or omitted in good faith in the exercise or performance or intended
exercise or performance of
(a) a power, duty or function conferred under this
Act, or
(b) a power, duty or function on
behalf of or under the direction of a person on whom the power, duty or
function is conferred under this Act.
[22]
Section 101 is part of the overall statutory scheme and as such must be
considered when determining whether a duty of care exists. In this case it is
not necessary to rely on it as an independent basis for addressing the
plaintiffs claim. In Cooper there was a similar statutory immunity
provision, which the Court considered in the context of the entire statutory
scheme in order to determine whether there was a duty of care.
[23]
It is clear that the overriding mandate of the Province under the CFSCA
is child protection. The imposition of a private law duty owed by the Province
to the plaintiff in matters involving a child protection investigation cannot
coexist with that mandate. There is a clear conflict.
[24]
In Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007]
3 S.C.R. 83, the Supreme Court of Canada considered a statutory immunity
provision (the Ontario equivalent to the CFCSA) in the context of a duty
of care analysis.
[25]
In Syl Apps, as a result of a story she had written at school
which alleged that her parents had physically and sexually abused her, a 14
year old girl was apprehended and placed in a foster home. Her parents,
grandmother and three siblings sued various government officials and
institutions.
[26]
The Court said this:
59 The conclusion that there is no proximity is
reinforced when one considers two additional reflections of legislative policy.
The first is that the Act
provides a remedy for families seeking to challenge the way their child is
treated.
60 Secondly, there is a clear legislative intent to
protect those working in the child protection field from liability for the good
faith exercise of their statutory duty. This is reflected in three statutory
immunity provisions. Section 15(6) of the Act states that "[n]o action
shall be instituted against an officer or employee of a [Children’s Aid]
society for an act done in good faith in the execution or intended execution of
the person’s duty or for an alleged neglect or default in the execution in good
faith of the person’s duty."
61 Section 4(3) of the Ministry of Community and
Social Services Act, R.S.O. 1990, c. M.20, contains similar protection
against personal liability for employees of the Ministry of Community and Social
Services. At the relevant time, the Syl Apps Secure Treatment Centre was
operated by the Ministry of Community and Social Services. Moreover, s. 142 of
the Courts of Justice Act, R.S.O. 1990, c. C.43, states that "[a]
person is not liable for any act done in good faith in accordance with an order
or process of a court in Ontario."
62 These immunity
provisions lend further support to the conclusion that there is no proximity in
the relationship between the family of a child in care and those directed by a
court to protect that child’s best interests. There is, as a result, no basis
for recognizing a prima facie duty of care towards the family on the
part of the Syl Apps Secure Treatment Centre or Mr. Baptiste.
[27]
In my view the similarity of the facts and the legislation in Syl
Apps are directly on point.
[28]
Syl Apps was considered in Harrison v. British Columbia
(Children and Family Development), 2010 BCCA 220. In Harrison the
Province and an individual social worker were sued in negligence, defamation
and misfeasance in public office. A summary application by the defendants to
dismiss was unsuccessful. On appeal the plaintiffs action was dismissed. After
noting that a claim in negligence can only arise if the defendant owes the
plaintiff a duty of care (para. 45) the court said this:
[48] In Syl Apps, the Supreme Court of Canada
declined to recognize a duty of care alleged to be owed by child protection
authorities to the family members of children in their care. The deciding
factor in the Court’s decision, made at the proximity stage of the analysis,
was the potential for creating a "’serious and significant’ conflict with
[the] transcendent statutory duty [of child protection authorities] to promote
the best interests, protection and well-being of the children in their
care" (at para. 41). The Court emphasized the need to avoid fettering that
overarching mandate by imposing any corresponding duty to family members which,
they cautioned, could result in a "chilling effect on social workers, who
may hesitate to act in pursuit of the child’s best interests for fear that
their approach could attract criticism –– and litigation –– from
the family" (at para. 50).
[49] I would not simply extend the ruling in Syl
Apps to any relationship that involves a child protection worker, thereby
disposing of the present action and precluding the possibility of any duty
being recognized other than to the child. Different relationships will
inevitably raise different considerations, and each warrants a fresh analysis
sensitive to those considerations: Hill v. Hamilton-Wentworth Regional
Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 at paras. 24, 27.
[52] The primary obligation of social workers operating
under the CFCSA, including Ms. Bischoff, is found under s. 2 of the Act,
which provides that the safety and well-being of children must be the paramount
considerations in the administration of the statute. It is in the context of
this statutory mandate that Ms. Bischoff was expressly required to review the
background of individuals seeking to work with vulnerable children in the care
of the MCFD.
[53] Imposing a
private law duty of care on a social worker to those whose background he or she
must review for child safety concerns has the potential to interfere with their
ability to discharge that vital task. More broadly, it would interfere with the
paramount duty to the safety of the child. A social worker should not feel torn
between her paramount obligation to the child and an ancillary duty to consider
the employment status of those who seek to care for them. Accordingly, imposing
a duty of care on Ms. Bischoff in these circumstances poses precisely the risk
for inherent conflict that was found to be determinative by the Supreme Court
of Canada in Syl Apps. There is simply no basis to distinguish Syl
Apps in this regard.
[29]
The plaintiff relies on Hill v. Hamilton-Wentworth Regional Police
Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 at paras. 24 and 27 noted
by Justice Levine in para. 49 of Harrison quoted above. Paragraph.
24 of Hill reads as follows:
24 Generally speaking, the
proximity analysis involves examining the relationship at issue, considering
factors such as expectations, representations, reliance and property or other
interests involved: Cooper, at para. 34. Different relationships raise
different considerations. "The factors which may satisfy the requirement
of proximity are diverse and depend on the circumstances of the case. One
searches in vain for a single unifying characteristic": Cooper, at
para. 35. No single rule, factor or definitive list of factors can be applied
in every case. "Proximity may be usefully viewed, not so much as a test in
itself, but as a broad concept which is capable of subsuming different
categories of cases involving different factors" (Canadian National
Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021, at p.
1151, cited in Cooper, at para. 35).
[30]
The plaintiff submits that since the plaintiff had earlier been involved
in a custody trial in which a social worker was a witness with knowledge of
inappropriate conduct by the childrens father, the Ministry was thereby in a
position of sufficient proximity because of that knowledge.
[31]
The plaintiff also relies on L.C. & L.S. v. H.M.T.Q. et al,
2005 BCSC 1668, where the mother and grandmother of a child brought an action
against the Crown for damages for vicarious liability for actions done or not
done by its social workers. Section 101 did not apply to protect the Crown. The
court held that while the underlying policy of the applicable act was to
protect children from harm, that persons other than children may be in
sufficient proximity to the Ministry (para. 104). In L.C. & L.S. the
court found there was a relationship between the Ministry and the mother because
she was being supervised by the Ministry. Sufficient proximity was found with
respect to the mother but not the grandmother.
[32]
However, L.C. & L.S. predates Syl Apps. In C.H.S. v.
Alberta (Child, Youth and Family Enhancement Act, Director), 2010 ABCA 15, the
Alberta Court of Appeal refers to L.C. & L.S. and other cases where
a prima facie duty of care has been found but notes at para. 22:
[22] The Director submits
that the ruling in Syl Apps is a complete answer to the
appellant’s claim. Prior to Syl Apps, the Supreme Court held that
a breach of a custody order does not give rise to a common-law duty of care in
negligence: Frame v. Smith, [1987] 2 S.C.R. 99. Nonetheless,
courts have often found a prima facie duty of care in circumstances
similar to the case at bar: see L.C. v. British Columbia (Minister of
Children and Families), 2005 BCSC 1668, 49 B.C.L.R. (4th) 164; A.G.
v. British Columbia (Family and Child Services) (1989), 38 B.C.L.R.
(2d) 215, 61 D.L.R. (4th) 136; Delaronde v. R., 2000 BCSC 700; D.B.
v. Children’s Aid Society of Durham Region, [1994] O.J. No. 643 (Gen.
Div.)(QL), aff’d (1996), 136 D.L.R. (4th) 297, 92 O.A.C. 60 (C.A.); A.A.D.
v. Tanner (2004), 188 Man. R. (2d) 15 (QB). Since Syl Apps
was decided, courts have almost unanimously found that child protection
authorities do not owe a duty of care to family members of children in their
care: see P.K.A. v. Children’s Aid Society of Toronto, 2007
Carswell Ont. 6808, (sub nom. Pearce v. Children’s Aid Society of Toronto),
[2007] O.J. No. 4091 (Sup. Ct. Jus.) (Q.L.); Ashford v. Children’s Aid
Society of Cape-Breton Victoria, 2008 NSSC 73 (sub nom. L.L.A. v.
C.A.S.), 263 N.S.R.(2d) 1; D.C. v. Children’s Aid Society of Cape
Breton Victoria, 2009 NSCA 73, 278 N.S.R. (2d) 394. These cases all
find, for reasons similar to those in Syl Apps, that the
proximity test is not met due to the conflict that such a duty would place on
the child protection authorities, who are obligated to ensure that the best
interests of the child are met. Thomas J.’s decision is consistent with this
approach.
[33]
The Alberta Court of Appeal then concluded:
[27] While we consider ourselves bound by this finding
in Syl Apps, we would reach the same conclusion even without the
benefit of the Supreme Court’s ruling. The above-referenced legislative
provisions are only some of the factors to be considered when making decisions
under the Act. Though they recognize that the interests of the families
and the maintenance of the family unit should be taken into account, the
overriding premise remains that any decisions made in relation to a child in
need of protection must be governed by the best interests of that child.
Unfortunately, the well-being of a child will not always align with the
interests of that child’s parents and siblings, and too often the two will
conflict. This reality reflects the fact that child welfare authorities are
often in the unenviable position of having to make hard and difficult choices
when making decisions for a child in need of protective services. Importing a
duty of care in favour of the child’s family members into this mix is both
unwarranted and undesirable, as the potential for conflict will place
additional undue strain on child welfare authorities and creates unnecessary
policy consequences.
[28] Accordingly, we find
that the statutory scheme gives rise to an inherent conflict, such that a duty
of care is precluded. To find otherwise would place undue and unwanted pressure
on the Director to make decisions under the Act that may not align with
the overriding policy objective of ensuring the best interests of the child.
[34]
The fact that the Ministry had prior dealings with the family does not
in my view establish that the Ministry and social workers owed a duty of care. It
does not overcome the inherent conflict that precludes a duty of care.
[35]
As a result the plaintiffs claims fail at the duty of care stage. The
Crown and the individual social workers do not owe the plaintiff a private law
duty of care in this case as such would conflict directly with their paramount
duty to children. The circumstances of this case are very similar to those in Syl
Apps. As in Harrison I see no basis to distinguish Syl Apps
on the issue of the inherent conflict that exists if a duty of care to the
parent is found.
[36]
The plaintiff referred to a number of additional authorities however
they focus on the issue of standard of care and the issue of good faith. The
issue of standard of care only arises if a duty of care is found, as does
reliance on s. 101. As such a duty has not been found I need not address the
issue of standard of care nor good faith.
[37]
The claims against the Province as represented by the Minister of Child
and Family Development and the individual social workers in actions 15740 and
15732 are therefore struck and dismissed with costs.
Application of Individual RCMP Officers in Action 15732
[38]
The plaintiff claims that the defendants Smith, Brown and Wenger were
negligent in their investigation of the sexual assault complaints against her. She
alleges a duty of care, and the negligence is described as arising from
improper and inadequate investigation regarding [the plaintiffs] innocence,
improper investigation at the SCAN Clinic directed by the Serious Crimes Unit
of the RCMP and for failing to investigate relevant charges and the childrens
father and his common law spouse prior to November 2010.
[39]
The defendants apply pursuant to Rule 9-5(1)(a) for an order striking
the pleadings for failing to disclose a reasonable cause of action. Specifically
that the pleadings fail to plead all elements of the civil tort of negligent
investigation and further that they fail to plead the elements required for
imposing personal liability on a police officer.
[40]
The defendants Smith, Brown and Wenger were at all material times acting
in the course and scope of the execution of their duties as peace officers and
members of the RCMP, both at common law and in accordance with s. 9 of the Royal Canadian
Mounted Police Act, R.S.C. 1985, c. R-10 (the RCMP Act). There was
during the relevant time period an agreement between the governments of BC and
Canada pursuant to s. 14(1) of the Police Act, R.S.B.C. 1996, c. 367 and
s. 20 of the RCMP Act whereby the RCMP was authorized to carry out the powers
and duties of a provincial police force. Pursuant to s. 14(2) of the Police
Act they were deemed to be provincial constables.
[41]
Pleadings must clearly define the issues of facts and law. Material
facts must be clearly stated. Rule 3-1(2) of the Supreme Court Civil Rules
requires that a notice of civil claim:
(2)
(a) set out a concise statement of
the material facts giving rise to the claim;
(b) set out the relief sought by
the plaintiff against each named defendant;
(c) set out a concise summary of
the legal basis for the relief sought;
[42]
The purpose of pleadings is to define the issues of fact and law that
are to be determined by the court. That includes defining the issues for each
cause of action and setting out the material facts being those facts that are
necessary to formulate a complete cause of action (Homalco at para 5).
[43]
As noted in Stoneman v. Denman Island Local Trust Committee, 2010
BCSC 636 at para. 27:
[27]
The requirement is
simply to set out the material facts upon which the plaintiff relies to support
a cause of action known to law. However, when it is apparent that several
causes of action are being alleged against multiple defendants, then unless the
statement of claim sets out with clarity what facts relate to what cause of
action and against which defendant, the pleading fails to clearly define the
issues of fact and law to be determined by the court: Homalco at para.
5.
[44]
However, as mentioned above, it is only if it is plain and obvious that
the plaintiffs notice of civil claim discloses no reasonable cause of action
that it should be struck.
[45]
The purpose of the power to strike was summarized in R v. Imperial
Tobacco Canada Ltd., 2011 SCC 42, [2001] 3 S.C.R. 45 at paras. 19 and 20:
[19] The power to strike out claims that have no
reasonable prospect of success is a valuable housekeeping measure essential to
effective and fair litigation. It unclutters the proceedings, weeding out the
hopeless claims and ensuring that those that have some chance of success go on
to trial.
[20] This promotes two goods
— efficiency in the conduct of the litigation and correct results. Striking
out claims that have no reasonable prospect of success promotes litigation
efficiency, reducing time and cost. The litigants can focus on serious claims,
without devoting days and sometimes weeks of evidence and argument to claims
that are in any event hopeless. The same applies to judges and juries, whose
attention is focused where it should be – on claims that have a reasonable
chance of success. The efficiency gained by weeding out unmeritorious claims in
turn contributes to better justice. The more the evidence and arguments are
trained on the real issues, the more likely it is that the trial process will
successfully come to grips with the parties’ respective positions on those
issues and the merits of the case.
[46]
The plaintiffs pleadings make the following allegations of negligent
investigation:
14. On or about August 6, 2008 the Defendant Wenger
consulted with the Defendant Jeffery Foreman, a Smith[e]rs social worker, with
respect to his pending arrest of the Plaintiff and the proposed removal of [L.G.]
from the Plaintiffs home.
15. August 6, 2008, the Defendant Wenger without any
interview with her contacts in the community unlawfully arrested [the
Plaintiff] on suspicion of sexual assault on her male children by [sic] and
unlawfully imprisoned her for more than 4 hours at the Smithers RCMP detachment
despite the Plaintiff having no criminal record, having resided in the Bulkley
Valley for years, on the basis of allegations that had not been properly
investigated.
22. [The Plaintiff] requested and many other concerned
citizens urged the investigation be continued regarding the source of the
complaints. The Defendant officers failed to follow the RCMP operation manual
directing investigations of mischief once the sexual assault complaint file was
closed. [The Plaintiff] conveyed her suspicious of coaching false complaints,
mischief, conspiracy to prosecute her for a crime the complainants knew to be
false yet on October 20th, 2008, the Defendant Staff Sergeant Quintin Smith,
Major Crimes Unit Commander refused to undertake further interviews to continue
the investigation in blatant disregard of the operation manual.
[47]
And para. 1 of Part 3: Amended Legal Basis reads as follows:
1. The Defendant
Constables Wenger, Brown and Staff Sargent Quintin Smith, owed her a duty of
care to investigate possible exculpatory evidence. Reasonable officers in
similar circumstances would have done so given: the serious nature of the
allegations, the improbable facts upon which the allegations were based, the potential
for irreparable damage to the family unit, the possibility of life
imprisonment, and the stigma associated with sexual offenses generally and
against children specifically.
[48]
A claim in negligence against the RCMP members Wenger, Brown and Smith
requires that the plaintiff establish the following:
(a)
That the investigating officers owed her a duty of care;
(b)
That the investigating officers failed to meet the appropriate standard
of care;
(c)
That the plaintiff suffered a compensable loss or injury;
(d)
That the loss or injury was caused by the officers negligent act or
omission.
(Hill v.
Hamilton-Wentworth Regional Police Services Board)
[49]
The plaintiffs pleadings consist substantially of a narrative of events
containing various opinions and conclusory statements. They are notably
deficient in addressing the issues of fact and law. Counsel for the plaintiff
argues that the amended notice of civil claim sets out sufficient facts to show
that the officers were clearly involved in the investigation. With respect that
is not sufficient.
[50]
For example, with respect to Staff Sergeant Smith the pleadings make no
other mention of him than noted above. What is pleaded relates to an allegation
that he failed to investigate further charges after the investigation was
concluded. There are no facts pleaded that he was involved in the investigation
in issue and no facts showing there was a duty of care. There is no allegation
of negligence.
[51]
With respect to Constable Brown the only mention of Brown is the
allegation that she took a statement from one of the children. There are no
allegations she was involved in the decision to arrest or detain the plaintiff
nor that she was part of the investigation and even if she was investigating, no
facts are pleaded that she breached a duty of care.
[52]
With respect to Constable Wenger the amended notice of civil claim quoted
above does properly allege negligence.
[53]
Generally the pleadings fail to address the necessary elements of the
tort of negligence noted earlier. There are no allegations of a failure to meet
the standard of care, there are no allegations that the plaintiff suffered loss
or injury or that loss or injury was caused by the officers negligent act or
omission. As a result a reasonable cause of action is not established.
[54]
In addition with respect to all three defendant officers the pleadings name
them only in their personal capacity yet make no allegations that would attract
personal liability given s. 21 of the Police Act. Section 21 provides:
21 (1) In this section, police
officer means either of the following:
(a) a person holding an appointment
as a constable under this Act;
(b) an IIO Investigator.
(2) No action for damages
lies against a police officer or any other person appointed under this Act for
anything said or done or omitted to be said or done by him or her in the
performance or intended performance of his or her duty or in the exercise of
his or her power or for any alleged neglect or default in the performance or
intended performance of his or her duty or exercise of his or her power.
(3) Subsection (2) does not
provide a defence if
(a) the police officer or other
person appointed under this Act has, in relation to the conduct that is the
subject matter of action, been guilty of dishonesty, gross negligence or
malicious or wilful misconduct, or
(b) the cause of action is libel or slander.
[55]
The pleadings do not allege that the defendants conduct was dishonest,
grossly negligent, malicious or wilful misconduct nor do they set out a cause
of action in libel or slander. The defendants submit the result is there is no
cause of action alleged against the defendants as individuals.
[56]
The plaintiff submits the amended notice of civil claim does set out
circumstances that if proven establish personal liability. She submits as a
result the conduct of the officers is a matter for trial and refers to the
comments of Mr. Justice Verhoeven in Adams v. Hughes, 2011
BCSC 1804 at para. 35:
[35] Section
21(3) of the Police Act does not carve out exceptions to the general
immunity of a police officer based on legal causes of action. It speaks in
terms of the conduct that is the subject matter of the action. The section
provides a defence to the police officer, in that no action for damages lies
against him or her unless the conduct that is the subject matter of the action
comes within the terms "dishonesty, gross negligence or malicious or
wilful misconduct". Therefore, whether a police officer’s conduct falls
within those terms will usually be determined upon examination of the facts,
most likely at trial, or possibly on a summary trial application, where facts
can be found. That is not the nature of the application before me. Nor, as I
have said, are the pleadings helpful.
[57]
In Adams, the matter before the court was the sufficiency of the
pleadings. In the circumstances, Verhoeven J. did not dismiss the actions
against the police officer, but ordered the claims be struck and amended by new
pleadings. Likewise in this case the question is sufficiency of pleadings, and
likewise in this case the pleadings are not helpful. As pleaded the issues of
dishonesty, gross negligence or malicious or wilful misconduct are not
discernable. Their presence is speculative at best.
[58]
Notwithstanding the plaintiffs argument that the circumstances do
support a claim of personal liability of the officers, during submissions
plaintiffs counsel conceded that the pleadings are deficient but argues they
are capable of amendment.
[59]
I agree and therefore strike parts of the plaintiffs claims against the
police officers with leave to amend. As a result para. 10 is struck with the
exception of the portion that relates to the allegation of negligence against
Cst. Wenger. Paragraphs 8-9 and 11-29 are struck as in my view they are not
capable of piecemeal amendment. New pleadings are required, which must comply
with the Rules of Court and the applicable principles of pleading noted
earlier. The further amended notice of civil claim must be filed and served
within 30 days of the date of these reasons.
[60]
The defendant Ministry and the social works shall have their costs. The
costs of the defendant RCMP officers shall be in the cause.
Punnett J.