Tag: Suing the Police

Suing the RCMP for Negligence, Can it be Done?


Is it possible to sue a member of the RCMP in British Columbia for negligence as a result of their actions in the line of duty?  For example, if an RCMP member isn’t paying adequate attention when driving and causes a car crash can they be sued?
A person injured in these circumstances does have the right to seek remedy in the civil courts (a tort claim) however the Defendant will likely not be the individual officer rather the Minister of Public Safety and Solicitor General of the Province of BC on behalf of her Majesty the Queen in Right of the Province of BC (the “Minister”).
The reason for this is that individual members of the RCMP enjoy statutory immunity for negligence claims if the negligence occurs in the performance of their duties.  However, the Minister is ‘jointly and severally liable‘ for the negligent act meaning that the Minister can be sued.  Reasons for judgement were released today by the BC Court of Appeal addressing this area of the law.
In today’s case (Amezcua v. Taylor) the Plaintiff was injured in a car crash caused by a member of the RCMP.  The RCMP member was sued directly.  She agreed that the accident was as a result of her “simple and regular negligence“.  She raised her statutory immunity as a defence.   Realizing that this would lead to a dismissal of the claim the Plaintiff brought a motion to amend the claim.  Ultimately this motion proved successful and the BC Court of Appeal allowed the proper party to be named.   Before reaching this conclusion the Court of Appeal did a great job discussing the law pertaining to negligence claims against the RCMP, specifically the BC High Court stated as follows:

[3] When authorized to carry out the powers and duties of a provincial police force under an agreement between Canada and the province, an RCMP officer is deemed to be a “provincial constable” (Police Act, s. 14(2)(b)).

[4] Section 11 of the Police Act provides that “[t]he Minister” is jointly and severally liable for torts committed, in the course of their employment, by, inter alia, provincial constables.  The Police Act does not define “the Minister”.

[5] Section 21 of the Police Act provides that no action lies against a police officer (“a person holding an appointment as a constable under this Act” (s. 21(1)) for negligence in the performance of their duties.  The restriction does not apply in circumstances in which the officer is grossly negligent (s. 21(3)).

[6] The Solicitor General of Canada and the Attorney General of British Columbia entered into a Provincial Police Service Agreement effective 1 April 1992, to continue until 31 March 2012.  Under s. 10.7 of the Agreement, if a member of the Provincial Police Service receives the benefit of a statutory defence (such as s. 11 of the Police Act) then “Canada shall indemnify and hold harmless the Province with respect to any such claims or actions” and “Canada shall assume the conduct and the carriage of any proceeding relating to such claim.”

It’s important to understand how these statutes work together if you have been injured by the negligence of a ‘provincial constable‘ in order to properly name the parties in a lawsuit otherwise you can risk having your case dismissed.

This case is also worth reviewing for the Court’s discussion of delay and prejudice in motions to amend pleadings.  In today’s case the Plaintiff  waited over 6 years from the expiration of the limitation period to bring a motion to add the Minister as a Defendant.  The BC Court of Appeal allowed the motion despite the significant delay finding that there was an adequate explanation for this delay and no demonstrated prejudice to the Defendant.  Specifically the Court held as follows:

[63] In my opinion, the chambers judge did not give due consideration to the first two factors to be considered under the Teal analysis.  In the result, she failed to give effect to the overriding factor of what is just and convenient in the circumstances.  The circumstances at play here were of a proposed party who, common sense demands in the absence of explanation to the contrary from the Minister, must have been informed of his potential liability.  An officer for whom the Minister was jointly and severally liable for torts committed in the scope of her employment had been charged with, and had admitted to, simple negligence.  The tenor of the correspondence throughout was that the Department of Justice was acting for both the defendant Taylor and the statutorily liable government representative.  If the Department of Justice wished to disabuse the plaintiff of any misapprehension on this point, counsel should have explicitly stated so.  The Minister’s submissions on appeal that he is prejudiced by the admission made by the defendant Taylor more than nine years ago and may have to himself allege gross negligence on the part of Taylor is not supported by evidence and places counsel for the Minister and Taylor in conflict.

[64] In my opinion, the delay in this case was explained, prejudice to the Minister was not established, and, therefore, the balance in this case favours the plaintiff.  It follows that I would allow the appeal with costs to the plaintiff both of the appeal and in the Supreme Court.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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