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BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘vicarious liability’

BC Court of Appeal – Vicarious Liability Under the Privacy Act is an Open Question

November 17th, 2015

Today the BC Court of Appeal released reasons for judgement finding it is an open ended question whether BC’s Privacy Act allows an employer to be vicariously liable when an employee willfully violates the privacy of another.

In today’s case, (Ari v. ICBC) a proposed class action, the Plaintiff sued ICBC alleging various improprieties arising from an employee improperly accessing “the personal information of about 65 ICBC customers“.

A chambers judge dismissed all of the claims except one under BC’s Privacy Act which makes it a tort  “for a person, wilfully and without a claim of right, to violate the privacy of another.“.

ICBC argued this section does not permit them to be sued for an employees wrongdoing.  The BC Court of Appeal disagreed and found it is an open ended question of whether vicarious liability can be attached to this statutory tort and that the issue needs to be addressed through the trial process.  In allowing this claim to survive the pleadings motion the BC Court of Appeal provided the following reasons:

[25]        It is not clear that s. 1 of the Privacy Act should be interpreted as limited in the same fashion as the relevant provisions in Nelson. Section 1(1) states that “[i]t is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another”. There is no language (as there was in Nelson) that clearly limits a plaintiff to recovery of damages from the person identified in s. 1(1). While, as the chambers judge observed, vicarious liability for acts of intentional and deliberate wrongdoing has generally been rejected, it is not unheard of (see: Lewis Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012) at 682). To the extent that s. 1(1) of the Privacy Act requires deliberate wrongdoing, it is not per se incompatible with vicarious liability.

[26]        Although Nelson may provide, by analogy, a basis for denying the availability of vicarious liability, I cannot conclude that the chambers judge erred in finding the appellant’s claim is on this basis, not bound to fail.

[27]        Alternatively, ICBC says that there is a policy argument which supports its position that there is no cause of action in vicarious liability. For policy reasons ICBC says, employers should not be held vicariously liable for wilful breaches of privacy under the Privacy Act.

[28]        ICBC also contends that the question before the chambers judge was whether vicarious liability should be imposed due to policy considerations. It says that the appropriate question to ask is: should liability lie against a public body for the wrongful conduct of its employee, in these circumstances? The question necessarily demands some exploration of the evidence about the connection between ICBC’s security procedures and the security lapse that occurred, as well as a weighing of the policy considerations involved. It is reasonable to conclude that a factual matrix is necessary in order to fairly address whether ICBC’s conduct materially enhanced the possibility of committing the breach of privacy, and to determine the connection between the impugned conduct and ICBC’s conduct. In other words, to clearly determine how public policy considerations affect the viability of the vicarious liability claim, some evidence is required.

[29]        ICBC submits in the further alternative that ss. 73 and 79 of the Freedom of Information and Protection of Privacy Act bar recovery for vicarious liability. Section 79 provides that the Act prevails where it conflicts with the provisions of other legislation. Section 73(a) prohibits proceedings against a public body for damages resulting from good faith disclosure or non-disclosure of all or part of a record under the Act.

[30]        As the disclosure alleged was not a good faith disclosure, s. 73 has no application to the circumstances of this case.

[31]        I am of the view that the question of vicarious liability on the facts of this case cannot be resolved on a pleadings motion. It is not plain and obvious the claim would fail. The chambers judge considered that the appellant ought to have the opportunity to develop and argue this aspect of his claim. I see no error in her conclusion.

[32]        For these reasons I would dismiss ICBC’s cross-appeal.


Joint TortFeasor Payments Fully Deductible From Lessor’s Vicarious Liability Obligations

November 7th, 2014

BC’s Motor Vehicle Act and Insurance (Vehicle) Act limit the vicarious liability of vehicle lessor’s to $1 million.  Reasons for judgement were released this week by the BC Court of Appeal clarifying this obligation when a personal injury claim is worth over $1 million and other responsible tort feasors have paid the first $1 million in damages.  In short, the BC Court of Appeal held that once payments from other tortfeasor’s are made up to $1 million lessor liability is fully extinguished.

In this week’s case (Stroszyn v. Mistui Sumitomo Insurance Company Limited) the Plaintiff was involved in a serious motor vehicle collision and settled his injury claim for $1.6 million.  ICBC, who insured the responsible driver, paid the first $1 million being the full extent of the Third Party insurance available.  The Plaintiff sought to collect the balance from the lessor, Honda Finance Inc., who was the registered owner of the Defendant’s vehicle and vicariously liable for the tort.

The BC Court of Appeal held that ICBC’s payment fully satisfied any exposure Honda had.  In reaching this conclusion and clarifying the protections given to vehicel lessor’s in BC the Court provided the following reasons:

[24]         I see no basis in law for considering only a portion of the ICBC payment to have been made on behalf of Honda. In my view, each of the insureds in this case can regard the whole of the payment made by ICBC to have been made on his, her or its behalf and to have reduced its liability to the petitioner to the full extent of the payment. In the absence of a statutory provision limiting the lessor’s liability, all three would remain jointly and severally liable for the balance of the petitioner’s damages. However, the I(V)A having limited the lessor’s liability to $1 million, it is my view that the payment of $1 million to the petitioner on behalf of all insureds, including the lessor, completely discharges the lessor’s liability and leaves the other defendants jointly and severally liable for the balance of the damages.

[25]         This must certainly be the case where the liability of Ms. Chen and Honda is entirely vicarious. Vicarious liability is discharged to the extent of any payment made in satisfaction of a plaintiff’s claim for damages. This is not a case where liability can be apportioned by degrees of blameworthiness, or severed.


Nightclub and Bouncers Ordered To Pay $3,084,200 Following Assault on Patron

October 1st, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, highlighting a $3 million jury verdict following a nightclub assault.

In today’s case (Maras v. Seemore Entertainment Ltd.) the Plaintiff was assaulted outside of a nightclub in Vancouver, BC and sustained a traumatic brain injury.  Both the owner of the club and 3 bouncers were found liable and ordered to pay the damages.  Prior to trial the Plaintiff offered to settle for $1.425 million an offer which was countered with $20,000 by the Defendants.   The Court ordered that the Defendant pay increased costs for failing to accept the Plaintiff’s reasonable pre-trial offer.  In highlighting the jury’s decision the Court provided the following reasons:

[1]             This action arose from an assault upon the plaintiff that occurred on April 4, 2009 outside the Au Bar nightclub, located on Seymour Street in Vancouver.

[2]             The plaintiff sustained serious injuries including a complicated mild traumatic brain injury combined with orthopedic and psychiatric injuries.

[3]             The plaintiff was 20 years old at the time of the assault and 25 years old when the action proceeded to trial before a jury for nine weeks commencing April 7, 2014.

[4]             Both liability and the quantum of damages were in issue at trial and vigorously contested by the parties.

[5]             On June 9, 2014, the jury delivered its verdict. Liability was found against the corporate defendant owner of the nightclub and three of the security personnel or “bouncers”. The action against one of the security staff defendants, Mr. Yip, and the nightclub’s manager, Mr. Childs, was dismissed. The plaintiff was found not to be contributorily negligent.

[6]             The jury assessed damages as follows:

General damages $   250,000
Loss of income and loss of earning capacity to trial $   175,000
Future loss of earning capacity $1,832,000
Cost of future care $   800,000
Special damages $     27,200
Total $3,084,200

 


Vehicle Lessor Liability Limit Over and Above That of Motorist

September 13th, 2013

UPDATE – November 7, 2014 – the below decision was overturned in reasons released this week by the BC Court of Appeal

____________________________________

Important reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the limit of exposure for vehicle lessor’s when their vehicles are involved in an at-fault collision.

Provisions of the BC Motor Vehicle Act and Insurance (Vehicle) Act expose lessor’s to $1,000,000 of liability when their vehicles are involved in a collision.  The BC Supreme Court was asked to interpret these provisions in the case of a $1.6 million dollar claim.

In this week’s case (Stroszyn v. Mitsui Sumitomo Insurance Company Limited) the Plaintiff sued an at fault motorist and the vehicle lessor for damages following a collision.  The quantum was agreed to at $1.6 million dollars.  The ICBC insured defendant paid out the policy limits of $1 million.    The vehicle lessor argued that they did not need to pay the balance as they were shielded by section 82.1 of the Insurance (Vehicle) Act from any payment after a Plaintiff collects $1 million.  Mr. Justice Bowden disagreed finding a lessor’s exposure, while capped at $1 million, is over and above damages collected from other liable parties. In reaching this conclusion the Court provided the following reasons:

[34]         As a lessor, under s. 86(1.2), Honda Canada is vicariously liable as a joint tortfeasor. Without the limitation in s. 82.1, it would be liable, together with the lessee, for all or part of the damages of $1,600,000. However, section s. 82.1 places a $1,000,000 limit on that liability such that Honda Canada’s portion cannot be greater than $1,000,000.

[35]         In my view, the payment of $1,000,000 on behalf of the lessee does not reduce the liability of Honda Canada to zero. It is simply a payment by one joint tortfeasor towards the total liability of the jointly liable parties. By virtue of s. 86(1.2) of the MVA, both the driver, Mr. Chen, and Honda Canada are jointly liable for the damages of $1,600,000. Pursuant to s. 82.1, Honda Canada’s portion of that liability cannot exceed $1,000,000. Of the total liability, $1,000,000 has been discharged by ICBC on behalf of the lessee, but Honda Canada remains liable as a joint tortfeasor, for $600,000.

[36]         This result is consistent with the plain meaning of s. 82.1 of the I(V)A which limits the liability of Honda Canada to $1,000,000. Its portion of the joint liability will not exceed $1,000,000. In my view, the combined effect of s. 86(1.2) of the MVA and s. 82.1 of the I(V)A is to expose a lessor, like Honda Canada, to liability as a jointfeasor, of $1,000,000, but no more. Thus, in this case, if the driver/lessee had no insurance coverage, the lessor would be liable for the amount of $1,000,000. On the other hand, if the insurance coverage of the driver/lessee resulted in a payment of $1,600,000, then no amount would be payable by the lessor, Honda Canada.


Prior Consistent Statements Considered in Vicarious Liability Impaired Driving Case

May 7th, 2013

Reasons for judgement were released this week by by BC Supreme Court, Chilliwack Registry, addressing the issue of implied or express owner consent following a motor vehicle collision involving an impaired driver.

In this week’s case  (Gibbs v. Carpenter) the Defendant Carpenter was driving a vehicle owned by the Defendant Kusch.  She denied giving him permission to drive the vehicle.  He was “impaired by alcohol” when he “crossed the centre line and collided head on” with the Plaintiff vehicle.

Mr. Justice Joyce had to decide whether there was consent for him to drive.  There was conflicting evidence on this point and the Court ultimately made the call that there was no express or implied consent letting the owner off the hook.  Prior to deciding this issue the Court grappled with whether a written statement the owner gave the police was admissible.

In the aftermath of the collision the owner provided the police with a verbal statement indicating that consent for the trip was not given or if it had been the owner expected someone else to drive.  This statement was admitted into evidence   The owner provided a more fullsome written statement to the police following this.  The owner attempted to get the written statement into evidence arguing it formed part of the original statement or in the alternative that it was needed to rebut an allegation of recent fabrication. Mr. Justice Joyce disagreed and excluded the statement. In doing so the following useful summary of the law was provided:

[61]         I am unable to agree that the written statement forms part of one continuous statement, given the intervening events. It is not as though the statement was given at the scene mere minutes after the first conversation. Ms. Kusch went home, slept, spoke to her father about what had happened and it was upon his suggestion that she prepared a written statement. Ms. Kusch had the opportunity to reflect and consider what information she would include in her statement. In my view, it cannot be considered a mere continuation of the earlier oral statement.

[62]         As for the submission that the written statement should be admitted to clarify the equivocal oral statement, the trial was the opportunity to testify whether the oral statement was made or not, whether it was accurate or not, whether Constable Wright’s version of what Ms. Kusch said was complete, or whether his recall and recording of the statement were incomplete. I, therefore, do not accede to Mr. Harris’ first ground.

[63]         I am also of the opinion that the statement is not admissible as a prior consistent statement rebutting an allegation of recent fabrication.

[64]         In R. v. Stirling, 2008 SCC 10 [Stirling], Mr. Justice Bastarache reviewed the principles applicable in determining when prior consistent statements can be led to rebut an allegation of recent fabrication and how such statements, if admitted, are to be used. The context in which the issue arose in Stirling is set out in paras. 1 – 2:..

[68]         Thus, the purpose of the prior consistent statement is to remove a potential motive to fabricate and a trial judge may consider the removal of this motive when assessing the witness’s credibility.

[69]         In the recent decision delivered from the Ontario Court of Appeal, R. v. Kailayapillai, 2013 ONCA 248 at para. 41, I note that Mr. Justice Doherty adopted the phrase “motive or reason” to fabricate and discussed the importance of the timing of the statement in relation to when the motive or reason arose:

[41]      … The value of the prior consistent statement does not rest exclusively in its consistency with the evidence given by the witness at trial. It is the consistency combined with the timing of that prior statement. As the statement was made before the alleged motive or reason to fabricate arose, the statement is capable of rebutting the suggestion made by the cross-examiner that the witness’s evidence is untrue because it was fabricated for the reason or motive advanced in cross-examination. The witness’s evidence is made more credible to the extent that the asserted motive or reason advanced for fabrication has been negated by the evidence of the prior consistent statement: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7.

[Emphasis added.]

[70]         Once admitted, the trial judge may not use the prior consistent statement for the truth of its contents. At para. 11 of Stirling, Bastarache J. said:

[11]      Courts and scholars in this country have used a variety of language to describe the way prior consistent statements may impact on a witness’s credibility where they refute suggestion of an improper motive. …. What is clear from all of these sources is that credibility is necessarily impacted ? in a positive way ? where admission of prior consistent statements removes a motive for fabrication. Although it would clearly be flawed reasoning to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility.

[71]         In the present case, any reason that Ms. Kusch may have to fabricate a story was clearly present at the time she prepared her type-written statement. She faced having to explain to her father, a police officer, how an inebriated young man with a learner’s permit came into possession of her car and came to be involved in a serious car accident. She may very well have appreciated that there might be insurance implications arising out of who was driving. She may also have been influenced by the advice of her father in forming her statement. The statement was not prepared prior to the existence of a reason to fabricate; it was formed afterward. In my view, it does not have any probative value and does not fall within the exception to the general rule that excludes prior self-serving statements. It is not admissible.


Vicarious Liability Claim Dismissed In School-Ground Assault Lawsuit

February 13th, 2013

Adding to this site’s archived posts addressing claims of vicarious liability,  reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, considering a claim seeking to hold a School District liable for a school-ground assault.

In this week’s case (Jackson v. School District No. 53) the Plaintiff sustained a traumatic brain injury after being punched by another student.  The Plaintiff sued the School District arguing the assailant was involved in a previous assault several months earlier and the School District failed to impose adequate discipline which “emboldened (the assailant) by lack of proper discipline“.

Mr. Justice Bernard rejected this argument and dismissed the Plaintiff’s claim finding that even if the school was not harsh enough in their prior discipline there is no chain of causation.  In dismissing the claim the Court provided the following reasons:

[42]         Even if, however, significantly harsher disciplinary measures than those taken ought to have been employed for the March 2 incident, I am unable to conclude that the plaintiff has established the requisite nexus between that failure and the subsequent assault upon him. In this regard, it is noteworthy that seven uneventful months transpired between the two incidents; that the incidents occurred in separate school years and at a time when children and their behaviours are changing rapidly; that it makes little sense that Tylor’s state of mind about Makwalla would have turned on his awareness of the discipline imposed on Makwalla rather than of the details of the incident itself; and, that it would require considerable speculation to conclude either that Makwalla would have been sufficiently deterred or rehabilitated such that the assault upon Tylor would probably not have occurred, or that the assault occurred because Makwalla was emboldened by the inadequacy of the discipline.


Bullock Orders and Judicial Discretion

June 15th, 2012

As previoulsy discussed, when a Plaintiff sues 2 parties and succeeds only against one the Court had a discretion under Rule 14-1(18) to order that the unsuccessful defendant pay the successful defendants costs.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the flexibility of this discretion in action.

In last week’s case (Bakker v. Nahanee) the Plaintiff was injured when struck by a stolen vehicle being driven by the Defendant.  The Plaintiff sued for damages and, as is customary in BC, also sued the Registered owner of the vehicle alleging vicarious liability pursuant to section 86 of BC’s Motor Vehicle Act. As the lawsuit progressed it became clear that the at fault vehicle was indeed stolen making the vicarious liability claims untenable.

Ultimately the action was dismissed against the owner and a settlement was reached with respect to the claim against the driver.  The Plaintiff applied for an order that the Driver pay the costs of the successful owner.  Madam Justice Fitzpatrick agreed such a result was justified but only until the examination for discovery phase where it was obvious that the vicarious liability claims would not succeed.  The Court provided the following reasons:

[40] Supreme Court Civil Rule 14-1 (18) provides that the Court may exercise its discretion in ordering that the costs of one defendant be paid by another defendant:

If the costs of one defendant against a plaintiff ought to be paid by another defendant, the court may order payment to be made by one defendant to the other directly, or may order the plaintiff to pay the costs of the successful defendant and allow the plaintiff to include those costs as a disbursement in the costs payable to the plaintiff by the unsuccessful defendant…

[52] It is not a novel concept that when preparing pleadings, all parties who are potentially liable should be included where a valid cause of action can be reasonably advanced. This applies equally in the arena of motor vehicle litigation. In this respect, Mr. Bakker also relied on the evidence of Mr. David Kolb, a Vancouver lawyer who practices in this area. He states that an owner of the vehicle in question is always named as a defendant arising from the statutory vicarious liability under the Motor Vehicle Act. He goes on to state that even if the car was purportedly stolen, it is wise to err on the side of caution and name all parties until further investigations are done to ensure that all facts are known before the owner is released from the litigation. He cites as an example, that while the driver/thief and the owner may have different names, further investigations may in fact reveal that they were related and resided together, in which case the owner would be liable even if a stolen vehicle is involved. There may also be issues of fraud or improper motive on the part of the owner who reported the vehicle as stolen. Until such facts as may establish liability are ruled out, it is a prudent practice to name the owner.

[53] In these circumstances, as a general proposition, I am of the view that Mr. Bakker was reasonable in naming Ms. Ang and GMAC as defendants to this action…

[77] In my view, and exercising my discretion, the granting of a Bullock order is appropriate in the circumstances but the order should be limited, similar to that which was ordered in Cominco at 212. Accordingly, Mr. Bakker is entitled to a Bullock order but only in respect of the costs incurred up to and including the examination for discovery of Ms. Ang on September 20, 2007. By that time, Mr. Bakker’s counsel had elicited sufficient evidence from Ms. Ang to be satisfied that she and GMAC had no vicarious liability and that there were no mechanical issues relating to the vehicle. Beyond September 20, 2007, I am unable to say that it would be just or fair to fix Mr. Nahanee with the costs of Ms. Ang and GMAC.


Landlord Found Vicariously Liable For Assault By Their Relative

May 10th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the issue of vicarious liability following an assault.

In this week’s case (Van Hartevelt v. Grewal) the Plaintiff was involved in a physical altercation with the Defendant R. Grewal.  While there were competing versions of what occurred Mr. Justice Savage found that this Defendant pummelled the Plaintiff “with his fists…sending him to the ground” then “kicked (the Plaintiff) forcefully in the ribs as he lay on the floor“.

The Defendant was found liable and ordered to pay over $65,000 in damages including punitive damages.

The Defendant was the son of the owners of the Rani Lynn Apartments which is where the altercation took place.  The Plaintiff was a tenant there.  The Plaintiff also sued the owners arguing they ought to be found vicariously liable for the assault.  Mr. Justice Savage agreed and found the owners jointly and severally liable (except for the punitive damage award).  In doing so the Court provided the following reasons illustrating that vicarious liability can flow beyond a formal employer/employee relationship:

[52] I accept Mr. G. Grewal’s evidence that he did not charge family members rent while they were living at the Randi Lynn.  However, he did not charge rent to Mr. R. Grewal, and at other times other relatives living at the Randi Lynn on the expectation that they would perform services for him at the apartment

[54]As a family member receiving free rent Mr. R. Grewal was beholden to the Second Named Defendants and was expected to do their bidding at the Randi Lynn…

[64] While it is true that independent contractors will not generally attract such liability and that employees generally will, it is not the case that the employer/employee relationship is the only one that can attract vicarious liability…

[65] Therefore, the main considerations in the present case are whether the relationship was sufficiently close to justify the imposition of liability, whether the tort was sufficiently connected to the assigned tasks of the tortfeasor to be regarded as the materialization of the risks created by the enterprise, and whether the imposition of liability would satisfy the policy goals outlined in Bazley.  I answer all of these questions in the affirmative.

[66] The reason that employers are often found to be vicariously liable whereas those hiring independent contractors are not is that in the former case, the employer has created the risk and is in the best position to mitigate it.  Thus, it is both efficient and fair to impose vicarious liability.  In the present case, although it was not a typical employment relationship, the Second Named Defendants created the risk associated with Mr. R. Grewal, were or should have been aware of the risk, and were in the best position to mitigate this risk.

[67] The Second Named Defendants were aware of the violent history of Mr. R. Grewal and were aware of the recent confrontation between Mr. R. Grewal and Mr. Van Hartevelt; a confrontation that arose in the context of  Mr. R. Grewal’s role as an on-site owner representative.  As such, the risk of violent confrontations initiated by Mr. R. Grewal was caused by the enterprise of the Second Named Defendants and they were in a unique position to mitigate this risk.  They were specifically made aware of the risk by Mr. Van Hartevelt’s letter of July 12, 2006.  The fact that the Second Named Defendants did not take steps to mitigate the risk renders them blameworthy.

[68] There is also the assertion, albeit made by Mrs. R. Grewal, that the ‘owners’ of the building were entitled to enter Mr. Hartevelt’s suite.   This was made in the presence of Mr. R. Grewal.   Mr. R. Grewal, rather than correcting this misapprehension, schooled as he was in tenancy matters, remained and the events followed.

[69] In my opinion there is a sufficiently close relationship to justify the imposition of vicarious liability in this case.


Welcome Australian Broadcasting Corporation Listeners

April 23rd, 2012

The Australian Broadcast Corporation has recently been reporting on their Nation’s inquiry into historic sexual abuse involving religious organizations.

In the context of this story I had the pleasure to participate in a recent interview with ABC’s Anita Barraud discussing the circumstances when Canadian Courts will allow a damage claim to succeed not just against the perpetrator of the abuse but also against the organization itself under the doctrine of ‘vicarious liability‘.  An audio clip of my interview can be found here which aired in Australia earlier today:

bst_20120424_0848.mp3

For those of you visiting this site looking for more information regarding Canada’s application of vicarious liability in the context of civil damage claims for sexual abuse you can click here to access my archived post addressing this topic.


Section 10 WCB Bar Fails to Protect Ministry of Solicitor General

February 27th, 2012

(Update June 19, 2013 – the below decision was overturned in reasons for judgement released today by the BC Court of Appeal)

As previously discussed, Section 10 of the BC Workers Compensation Act can strip people of their right to sue if they are injured in the course of their employment by someone else in the course of their employment.

When a police officer in the course of their duties injuries someone through negligence they may be subject to this bar.  However, when an RCMP officer is negligent they usually enjoy personal immunity from lawsuits and instead the injured party needs to look to the Minister of Public Safety and Solicitor General for compensation who are exposed by statute for liability when RCMP members are negligent in the course of their duties.  (Note: this Ministry has recently been overhauled and renamed the Ministry of Justice)

Interesting reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, discussing the interplay of the WCB Bar to lawsuits and actions against the Minister of Solicitor General for negligence of RCMP officers.

In last week’s case (Aitken v. Bethell) the Plaintiff was seriously injured while sitting in a parked vehicle.  The RCMP were in pursuit of the Defendant Bethell who lost control of his vehicle, colliding with another, and eventually causing a collision with the Plaintiff’s vehicle.  The Plaintiff sued various parties including the police officer.

Both the Plaintiff and the Police officer were found to be in the course of their employment at the time of the crash.   The Minister of Public Safety and Solicitor General brought an application to have the lawsuit against them dismissed relying on the WCB section 10 bar.  Mr. Justice Halfyard refused to do so finding that while the bar could prevent the lawsuit against the individual officer, the Minister did not enjoy the same immunity as they were not an ‘employer‘ and their liability was created by virtue of statue.  In permitting the claim to proceed Mr. Justice Halfyard provided the following reasons:

[66]I have attached s. 10(1) of the Act as an appendix to these reasons. It seems to me that, in a negligence action for damages for personal injury, in order for a defendant to succeed in this defence, it must be established:

a)that the plaintiff, at the time of the alleged injury, was a “worker;”

b)that the alleged injury “[arose] out of and in the course of [the plaintiff’s] employment;”

c)that the defendant was the plaintiff’s employer, or the plaintiff’s co-worker, or “any employer within the scope of this Part” (i.e., Part 1 of the Act), or “any worker;” and

d)that the conduct of the defendant which is alleged to have caused the injury “arose out of and in the course of employment within the scope of this Part” (i.e. Part 1 of the Act).

[67]Where the statutory bar applies in favour of a defendant, the plaintiff cannot maintain his or her action as against that defendant. The plaintiff is restricted to making a claim for workers compensation in respect of the injury caused by that defendant.

[68]It appeared to be common ground that, if the Minister was an employer within the meaning of the Workers Compensation Act, then s. 10(1) would be an absolute bar to any action being brought against him by the plaintiff, i.e., a “worker,” (for any tort allegedly committed by him or by a police officer), even though neither the government nor the Minister was the employer of the police officers involved. The potential scope of the statutory bar appears to be broad…

[80]It seems to me that the Court of Appeal is saying, by necessary implication, that the province cannot be vicariously liable under s. 11 of the Police Act, and that only the Minister can be. If that is so, then on hindsight, it would appear that Mr. Justice Macaulay should not have granted judgment against both the government and the Minister, but should only have found the Minister to be vicariously liable. To my mind, that result cancels out the argument of the applicants based on Hill v. Hurst.

[81]If the plaintiff had sued the Government of British Columbia (which would have to be named as “Her Majesty the Queen in Right of the Province of British Columbia”: s. 7 of the Crown Proceedings Act), the finding of WCAT that the government was an employer within the meaning of the Workers Compensation Act could have the legal effect of entitling the government to the statutory bar in s. 10 of the Act (but only if the conduct of the government, or its servant or agent, was a cause of the injury, and that conduct “arose out of and in the course of employment”). But the plaintiff has not sued the government, nor could he have sued the government, in my opinion. I am not persuaded that the Minister should be accorded the status of an employer for the purpose of s. 10(1) of the Act, simply because the government is an employer and because the Minister is the designate, or is the agent of, the government for the purposes of the Police Act.