BC Government Shielded From Liability in "Shaken Baby" Lawsuit
Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, discussing when a government authority can be pursued for damages for the negligent excercise of their powers.
In last week’s case (Sivertson (Guardian ad litem of) v. Dutrisac) the infant Plaintiff was brain injured allegedly “while in the care of…a licensed daycare ‘Kare Bare Child Care’ “. The Plaintiff sued various Defendants including the Capital Health Region “CHR” who were responsible for licensing the Daycare in question.
The CHR brought an application to dismiss the lawsuit against them arguing that even if they inadequately exercised their duties the lawsuit could not succeed because the CHR did not owe the Plaintiff a ‘private law duty of care‘. Madam Justice Boyd agreed and dismissed the lawsuit against the CHR. In doing so the Court provided the following reasons:
 The overall statutory scheme governing the licensing of daycare facilities provides an efficient framework to ensure the operation of community care facilities “in a manner that will maintain the spirit, dignity and individuality of the person being cared for “(s. 4(1)(a)(i)). …
 As in the Cooper decision, the CHR and its inspectors must balance a myriad of competing interests when dealing with the licensing and inspection of daycares, including the daycare owner’s interest in the continued operation of her business and the parents’ and the public’s interest in the protection of children in the care of the daycare owner.
 In my view, this balancing of interests is inconsistent with the imposition of a private duty of care. Thus, on a review of all of the authorities, and a consideration of the legislation in issue, I reject the notion that any private law duty of care was owed by the CHR (and its employees) to the infant plaintiff and his family.
 If however I am in error, and it is found that such a private duty of law does arise in the circumstances of this case, then I nevertheless find that the application of the second stage of theAnns test yields no different result. As the Ontario Court of Appeal held in Williams v. Canada (Attorney General), 2009 ONCA 378, at para. 17, at the second stage :
…the court considers whether there are “residual policy considerations” that militate against recognizing a novel duty of care. …These are policy considerations that “are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally”.
 In my view, any private law duty of care which may arise in this case would be negated for overriding policy reasons as in the Cooper case. This is because (i) the licensing officers were exercising both policy and quasi-judicial functions such that any decision required the balancing of both public and private interests. The Director must act fairly or judicially in removing an operator’s license and this is potentially inconsistent with a duty of care to children and families; (ii) the Director must make difficult discretionary decisions in an area of public policy. His decisions are made within the limits of the powers conferred on him in the public interest; and (iii) if there was a private duty of care owed by the Director to the children and parents, it would effectively create an insurance scheme for all those children attending licensed daycares within the Province, at great costs to the taxpaying public. As the Court held in Edwards, there is no indication here that the Legislature intended that result. Indeed the statutory immunity from liability provision suggests the contrary.