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Tag: vicarious liability

Saanich Police Officer Found "Grossly Negligent" For Fatally Shooting Disturbed Man

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(UPDATE January 10, 2013 – In reasons for judgement released today the BC Court of Appeal ordered a new trial in the below discussed case finding that the trial judge’s reasons did not adequatly address the important evidence presented at trial)
Important reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing lawsuits for damages against police officers when excessive force is used in the line of duty.
This week’s case (Camaso v. Egan) has been covered in the conventional press and I don’t intend to repeat all the well publicized details.  From a legal perspective, however, this case is useful for anyone interested in the law of police officer liability in British Columbia.
In this week’s case the Saanich Police Department were called to deal with a disturbed man.   Constable Dukeshire was one of the officers who responded to this call.  Shortly after encountering the disturbed individual Constable Dukeshire shot him several times resulting in his death.  He was found negligent making the City of Saanich liable for his actions under the principles of vicarious liability.  Damages of almost $350,000 were awarded to the disturbed man’s survivors under the BC Family Compensation Act.
Mr. Justice Burnyeat of the BC Supreme Court went further and found the officer grossly negligent for the death.  Paragraphs 269-308 are worth reviewing in full for anyone interested in this area of law.  Some of the highlights of Mr. Justice Burnyeat’s reasons were as follows:

[272]It is not in dispute that Constable Dukeshire shot Mr. Camaso.  Having established that, the onus shifts to Constable Dukeshire to establish that the shooting was justified.  In Prior v. McNab (1976), 16 O.R. (2d) 380 (Ont. H.C.), Reid J. stated in this regard:

… It is enough to allege and prove an assault.  Plaintiff need not prove that the force used was excessive.  He need prove only that it was used upon him.  The onus of proving that the force was not excessive would lie on the policeman.  This is clear from the decisions of our Court of Appeal.

The onus on a plea of justification in the use of force lies on him who asserts it: Miska v. Sivec, [1959] O.R. 144, 18 D.L.R. (2d) 363.  This applies to one who sets up the defence of self-defence (as in Miska) or on one who relies on a statutory duty:  O’Tierney v. Concord Tavern Ltd., supra, per Roach, J.A., who said, at p. 534:

It was implicit in a plea of justification even based on a statutory duty that the degree of force used was not excessive and the party making that plea must prove it.

That onus would lie on the police if sued. (at p. 385)…

[282]The “Use of Force Continuum” that is taught to all officers and which is part of the Policy of the Saanich Police Department provides for a continuum from “presence” to “communication” to “open hand control” to “taser” to “capsaicinoid aerosols” (pepper spray) to “empty hand impact techniques” to “impact weapons” to “lateral neck restraint” to “firearms”.

[283]After Mr. Camaso came out from behind his vehicle the first time, Constable Dukeshire moved directly to “firearms” without going through any of the earlier stages of the continuum.  After Constable Dukeshire saw that Mr. Camaso was not holding a weapon which could cause him harm from afar, Constable Dukeshire failed to deescalate the situation in order to establish “presence” and in order to establish “communication”.  This failure to do so breached the duty of care which Constable Dukeshire owed to Mr. Camaso.

[284]Rather than calling for backup, Constable Dukeshire pursued Mr. Camaso on his own.  Saanich Police Department Policy required Constable Dukeshire to engage a supervisor.  He failed to do so.  Saanich Police Department Policy required Constable Dukeshire to take charge and coordinate the efforts of the other two Constables.  He did not do so.  Rather than pursuing Mr. Camaso as the leader of a team or as part of a team, Constable Dukeshire pursued Mr. Camaso without the knowledge of the location of Constables McNeil and Murphy, and without attempting to coordinate their activities with his own.  No call was made by Constable Dukeshire for a supervisor to coordinate activities.  No attempt was made by Constable Dukeshire to allow Constables McNeil and Murphy to catch up to him in order that they could assist him in apprehending Mr. Camaso under the Mental Health Act….

[289]It was not reasonable for Constable Dukeshire to continue to aim his gun at Mr. Camaso when Mr. Camaso appeared to be complying by going down onto the ground as was requested by Constable Dukeshire.  His service revolver should have been holstered….

[295]Even with one or two potential weapons in Mr. Camaso’s hands, Constable Dukeshire who weighed almost one hundred pounds more and stood almost a foot taller than Mr. Camaso could not have had a reasonable belief that it was necessary to shoot Mr. Camaso for his own preservation.  It was always apparent to Constable Dukeshire that Mr. Camaso did not have a gun in his hands. …

[299]Putting myself in the position of Constable Dukeshire or putting a reasonable officer in the position of Constable Dukeshire, it is not reasonable to conclude that it is part of the responsibility of Constable Dukeshire to shoot Mr. Camaso three times and it is not possible on reasonable grounds to conclude that the force he used was necessary for the purpose of protecting himself and others from imminent or grievous bodily harm.  Putting myself in the position of Constable Dukeshire or putting even an inexperienced officer in the position of Constable Dukeshire, it is not possible on reasonable grounds to conclude that the force that was used was necessary.  Constable Dukeshire did not act on reasonable grounds when he shot Mr. Camaso.

[300]I find that Constable Dukeshire breached the duty of care owed to Mr. Camaso when he did not use the least amount of force necessary to carry out his duties, when he failed to remain a safe distance away from Mr. Camaso, when he failed to properly assess the situation before approaching Mr. Camaso, when he failed to plan an appropriate method to deal with the situation, when he advanced on Mr. Camaso thereby failing to deescalate the situation once it appeared that Mr. Camaso was beginning to comply with his commands, and when he failed to wait for backup support.  Constable Dukeshire breached his duty owed to Mr. Camaso to use only so much force as was reasonably necessary to carry out his legal duties.

[301]In the circumstances, I find Constable Dukeshire liable in negligence because I find that there was duty of care owed to Mr. Camaso, that there was a breach of that duty of care, and that the breach of the duty of care caused the death of Mr. Camaso.

[302]At the same time, Constable Dukeshire has failed to establish that the shooting was justified and that the force that he used was not excessive.  In fact, the Plaintiffs have shown on the balance of probabilities that the force that was used was excessive.  I find that Constable Dukeshire cannot rely on s. 25 of the Criminal Code of Canada or the provisions of ss. 16 and 28 of theMental Health Act.  His use of force was not justified.  I cannot find that Constable Dukeshire believed on reasonable grounds that it was necessary for his self-preservation to use the force that he did.  I have reached the conclusion that Constable Dukeshire is liable in damages as a result of his failure to act in good faith and with reasonable care…

307]In reviewing all of the circumstances of this case, I conclude that Constable Dukeshire was grossly negligent.  When the pursuit of Mr. Camaso commenced, Constable Dukeshire was not involved in a dangerous activity.  However, as soon as Constable Dukeshire removed his service revolver from its holster and aimed it at Mr. Camaso, he was involved in an activity where it is plain that the magnitude of the risks involved were such that more than ordinary care had to be taken.  If more than ordinary care was not taken, a misstep or a mishap was likely to occur such that loss of life or serious injury would be almost inevitable.  More than ordinary care was not taken.  The loss of the life of Mr. Camaso resulted.  I also find Saanich vicariously liable for the damages caused by Constable Dukeshire.

British Columbia Ordered to Pay $605,000 in Damages to Victim of Childhood Sexual Abuse

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Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, ordering the Government of BC to pay a Plaintiff $605,000 in damages as a result of childhood sexual abuse.
In today’s case (D.K.B. v. British Columbia) the Plaintiff was sexually abused by his hockey coach when he was 13 years old.    The abuse occurred in 1988.    The hockey coach was a convicted sex offender and his probation officer failed to warn the minor hockey association of this fact.  In 2005 the Province of BC was found vicariously liable for the sexual abuse.  Today’s case focused on damages.
The details of the abuse are set out in paragraphs 5-10 of today’s judgement.  The Plaintiff suffered harm as a result of this abuse.    Dr. O’Shaughnessy testified about the extent of the harm and his opinion was accepted by the Court.  Specifically Dr. O’Shaughnessy provided the following opinion:
Ultimately, however, I am impressed that given the nature of the sexual assaults and in particular at the critical developmental point that more likely than not the sexual assaults were a material factor in the development of his Mood Disorder and his substance abuse as well as his Personality Disorder. While indeed he may have gone on to develop problems with substance abuse in any event, I think the sexual abuse was a critical factor and more likely than not he would not have gone on to develop these difficulties had the sexual assaults not occurred
The Plaintiff went on to have a career in professional hockey and subsequently as a realtor.  He testified that this was impacted by the consequneces of the abuse.  Mr. Justice Dley agreed and awarded just over $450,000 for the impact the abuse had on the Plaintiff’s earning capacity.
The balance of the claim was made up largely of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  The parties settled this head of damage at $125,000.  Since this aspect of the case was privately settled today’s judgement is not, strictly speaking, a binding precedent on the issue, however, given the relative lack of reported cases dealing with non-pecuniary damages for sexual abuse in British Columbia I thought it would be useful to add today’s case to this site’s civil sex abuse claims database.

Further Clarity from BC Court of Appeal on Vicarious Liability of Vehicle Owners

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As I’ve previously written, The law places a very heavy burden on vehicle owners in BC when their vehicles are involved in an at-fault collision.  In British Columbia registered owners are “vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent (express or implied) of the owner“.
What this means is, if you let someone else operate your vehicle and they are at fault for a crash then you are at fault for that crash.  Today the BC Court of Appeal published reasons for judgement clarifying the application of this legal principle.
In today’s case (Snow v. Saul) the the Plaintiff was seriously injured in Vernon BC when a vehicle owned by a man named Mr. Saul and driven by a woman named Ms. Friesen struck the Plaintiff while walking on a sidewalk.  The Defendant driver apparently fell asleep at the wheel and lost control.
The Court found that Mr. Saul did not intend to let Ms. Friesen borrow his vehicle, he in fact did so by mistake.  Mr. Justice Williams found that Ms. Friesen asked to borrow Mr. Saul’s vehicle but at the time he was busy working and did not hear her because he was hard of hearing and had his hearing aid out.  As a result Mr. Saul mistakenly thought someone else was asking to borrow his vehicle so he granted permission,   Notwithstanding this interesting factual finding the trial judge went on to find that Mr. Saul was still vicariously liable for the collision because his actions constituted ”express consent” under section 86 of the BC Motor Vehicle Act (you can click here to read my article summarizing the trial finding).
The Defendant appealed arguing the trial judge incorrectly applied the law.  The BC Court of Appeal agreed and overturned the trial verdict finding the registered owner was not vicariously liable for the crash.  In reaching this conclusion the BC High Court made the following findings:

[16]         The central question raised by this appeal is whether the effect of Vancouver Motors U-Drive is that whenever a person (“O”), of his own free will, permits his vehicle to be driven by “A”, he is deemed to have consented to the vehicle being driven by anyone, and is thus liable to an injured plaintiff for damages caused by “B”.  In my view, the case does not stand for that proposition.  The grammatical structure and wording of s. 86(1) are such that it is the “person driving the motor vehicle” who must have acquired possession with the owner’s consent.  Thus in cases where B negligently causes damage to a plaintiff, the argument made by the plaintiff depends on proof of implied consent (which as noted above is not argued in the case at bar).  In such instances, British Columbia courts have ruled that O will not be liable, without more, for injuries resulting from B’s operation of the motor vehicle.  The plaintiff must in addition show that the owner had an “expectation and willingness” that the vehicle would be driven by B: see Simpson v. Parry (1968) 65 W.W.R. 606 (B.C.S.C.), per MacFarlane J. (as he then was), citing Martell v. Chartier & Dominion Motors Ltd. [1935] 1 W.W.R. 305 (Man. C.A.) and Antilla v. Majeau (1954) 12 W.W.R. (N.S.) 575 (Alta. Ap. Div.).  More recently, in Godsman v. Peck, supra, this court ruled that without evidence that the owner of a motorcycle who had lent it to another (A), expected that A would lend it to a third party (B), the owner’s consent to B’s operating the cycle could not be implied.  As the Court stated:

There should be evidence to show, or support the inference, that the owner turned his mind to the likelihood of that further transfer of possession. If there is no such evidence, a court finding liability on the owner’s part is not implying consent so much as deeming it. One of the commendable goals of s. 79(1) may be to induce owners of motor vehicles to exercise discretion when transferring control of them to others, but to impose liability in a case where such a transfer was not within the contemplation of the owner would do nothing to further that goal, and simply goes too far.  [At para. 28; emphasis added.]

(See also Smaldino v. Calla [1999] B.C.J. No. 2816 (S.C.).)

[17]         Conversely, consent may be implied from a course of conduct or circumstances known to the owner, as illustrated by Deakins v. Aarsen [1971] S.C.R. 609.  There it was held that an owner who had lent her car to her son to use whenever he wanted it, had not discharged the onus on her under s. 105(1) of the Highway Traffic Act, R.S.O. 1960, c. 172, to prove that when the son had lent the car to his girlfriend, he had done so without the mother’s consent.  The Court emphasized in brief reasons that the car was “for all practical purposes” the son’s car and that his mother exercised no control over who was to drive it.  She had been aware the girlfriend was her son’s “constant companion” and the trial judge evidently disbelieved her evidence that she had told her son not to let anyone else drive the car.

[18]         Counsel for the plaintiff submits that the implied consent cases are irrelevant to this case, which he says concerns “consent at law, not consent in fact”.  In his submission, what was in the owner’s mind is irrelevant as long as he gave up possession of his vehicle as a result of the exercise of his free will.  Thus what Mr. Weatherill characterizes as a “mistake” on Mr. Saul’s part when he gave his consent is neither here nor there – just as the “mistake” under which the employees of the car rental company in Vancouver Motors U-Drive Ltd. were labouring was found not to affect the validity of its consent to the fraudster’s operation of its car.

[19]         In my respectful view, however, this case is very different from Vancouver Motors U-Drive, where the appellant’s employees intended to lend the car to the person standing before them, and that person in fact drove the car.  In the case at bar, accepting the trial judge’s findings of fact, the owner did not consent to Ms. Friesen’s driving his truck.  He was told that “Neal” wanted to borrow it.  That is what Mr. Saul expressly consented to.  It defies common sense to say that he in fact consented to Ms. Friesen’s driving it.  Indeed, the trial judge accepted at para. 37 of his reasons that Mr. Saul would not have lent his vehicle to Ms. Friesen, as opposed to Neal Bourgeois.

[20]         Does the fact that we are here concerned with the application of a statutory provision change this common-sense conclusion?  Again, in my view, the answer is no.  Section 86 does not on its face “deem” one to have the owner’s consent when he or she does not have it in fact; nor does it impose a “legal” definition of consent that is at variance with the ordinary and natural meaning of the word.  The respondents rely heavily on the two purposes of s. 86, as described in Yeung, supra.  I do not see that the second objective is engaged in this case since, despite Mr. Weatherill’s suggestion that Mr. Saul had “casually” consented to lending his car, there is no evidence Mr. Saul did anything other than take reasonable care in consenting to Neal Bourgeois’ using his truck.  The trial judge found that Mr. Bourgeois did not share his partner’s drug addiction and that Mr. Saul is a “reasonably careful person who does not take unnecessary chances.”  (Para. 36.)  As for the expansion of the availability of compensation, s. 86(1) goes only so far: it does not state that whenever a person uses another’s car, the owner is vicariously liable.  The intention of the legislation is to place liability on a person who permits his car to be used by another, where that other negligently causes injury to a plaintiff.  In this case, the person to whom Mr. Saul gave his consent was Neal Bourgeois.  It was not Mr. Bourgeois who drove the truck negligently.

[21]         In the result, I would allow the appeal and set aside the trial judge’s order imposing vicarious liability on Mr. Saul pursuant to s. 86(1) of the Act.

BC Civil Sexual Abuse Lawsuits – A Video Discussion

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Here is a video I recently uploaded to YouTube providing a brief overview of some of the unique legal issues that provide an advantage to abuse victims when suing in the BC Civil Courts:

Last month I authored a handful of articles discussing some of the unique laws that apply to Civil abuse claim lawsuits.  These include the law of limitation periods, the law of non-pecuniary damages, and the law of vicarious liability.
Due to some of the positive feedback I received after authoring these articles I thought it may be helpful to summarize some of my advice in this brief video.  I hope this video and these articles are of some assistance.

A Caution to BC Vehicle Owners – Take Care in Who You Lend Your Vehicle To

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Reasons for judgement were published this week by the BC Court of Appeal revealing a valuable lesson to registered owners of vehicles.  Owners must take care in choosing who they lend their vehicle to as they can be found personally liable if such a person carelessly injures others while driving or operating the vehicle.
In today’s case (Robert v. Forster) Mr. Forster (the owner of a vehicle) allowed his daughter to use it.  He had rules restricting the scope of this permission, and these were that she “was not to drink and drive” and that “no one other than (the daughter) was to drive the vehicle“.
On June 2004 Mr. Forster’s daughter took the Jeep out.  She has been drinking at a bar.  After leaving the bar the daughter followed the first rule and did not drink and drive, however she broke her father’s second rule and let a friend drive the vehicle.  As the friend was driving the daughter “wrenched the steering wheel to the right” and caused the vehicle to flip into a ditch resulting in injuries to the occupants.
Various lawsuits were brought.  At trial the daughter, despite being a passenger, was found to be “driving” the vehicle.  She was found to be careless in grabbing the steering wheel with a finding that “t]he only conclusion I can come to on the evidence adduced at trial is that (the daughter’s) intoxication led her to believe that a hazard existed where there was none, or to think that it would be humorous to give the Jeep a shake by grabbing the steering wheel”  The Court went on to find that not only was she liable for the occupants injuries but so was the father as a result of s. 86 of the BC Motor Vehicle Act which holds as follows:
In an action to recover loss or damage sustained by a person by reason of a motor vehicle on a highway, every person driving or operating the motor vehicle who is living with and as a member of the family of the owner of the motor vehicle, and every person driving or operating the motor vehicle who acquired possession of it with the consent, express or implied, of the owner of the motor vehicle, is deemed to be the agent or servant of that owner and employed as such, and is deemed to be driving and operating the motor vehicle in the course of his or her employment.
The father appealed arguing he should not be held liable because the daughter was a passenger at the time and therefore could not have been “driving” the vehicle.
The BC Court of Appeal disagreed and dismissed the appeal.  In doing so the BC Court of Appeal made it clear that s. 86 of the BC Motor Vehicle Act is to be given a broad interpretation because it is intended to “expand the availability of compensation to injured plaintiffs).”  Specifically the BC High Court held as follows:

[21] This Court considered the purposes of s. 86 in Yeung (Guardian ad litem of) v. Au, 2006 BCCA 217, 269 D.L.R. (4th) 727, affirmed 2007 SCC 45. After reviewing the history and context of the section, Madam Justice Newbury commented as follows:

[38] …  the purposes of s. 86 are, I would suggest … to expand the availability of compensation to injured plaintiffs beyond drivers who may be under-insured or judgment-proof, and to encourage employers and other owners to take care in entrusting their vehicles to others.

The Court concluded in that case that a proper interpretation of s. 86 created vicarious liability on lessors of motor vehicles whose drivers are negligent in their operation if the drivers are in possession of the vehicle with the consent of the lessors.

[22] In my opinion, the conclusion that Ms. Forster was driving the Jeep is in accord with the grammatical and ordinary meaning of the language of s. 86 and the object and intention of the Legislature in enacting it. The decision in R. v. Bélanger establishes that a person sitting in the passenger seat of a vehicle can be regarded to be driving the vehicle if he or she controls the direction of the vehicle by turning its steering wheel. It is consistent with the first purpose of s. 86 articulated in Yeung v. Au to conclude that the Legislature intended an owner of a vehicle to be vicariously liable if a person, in possession of the vehicle with the consent of the owner, commits a deliberate, but negligent, act affecting the direction of the vehicle that causes injuries to another person.

[23] I therefore agree with the conclusion of the trial judge that Ms. Forster was driving the Jeep for the purpose of s. 86.

  • Implied Consent

Another interesting point of this judgement was the Court’s discussion of whether the Father consented to the daughter’s friend driving the vehicle.   You will recall that one of the clear rules was that only the daughter was allowed to drive, not her friends.  At trial Mr. Justice Rogers held that the father nonetheless consented to the friend operating the vehicle and provided the following reasons:

[32] Barreiro makes it clear that the policy that drove the result in Morrison extends to situations where the owner gives the keys to its agent and the agent passes the keys on to a third party. Barreiro stands for the proposition that so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car.  That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[33] In my view, except for the fact that (the owner) obtained no financial benefit from (the driver’s) possession of the Jeep, the present case is not distinguishable from Barreiro.  (the owner) freely gave the Jeep’s keys to (his daughter).  She freely gave the keys to (the driver).  (the owner) must, therefore, be taken to have expressly consented to (the driver’s) possession of the Jeep on the night in issue.

[34] For the same reason, (the owner) must be taken to have expressly consented to (his daughter’s) possession of the Jeep that night, and that is so notwithstanding the fact that she was intoxicated and that her being intoxicated broke the other of (the owner’s rules.

The BC Court of Appeal was asked to overturn this ruling but they refused to do so.  The BC High Court held that, since the driver of the vehicle was not careless (and therefore not responsible for any of the passengers injuries) the issue of whether or not there was consent “is moot and need not be decided on this appeal“

You can click here to read my 2008 article discussing the trial judgement.

BC Civil Sexual Assault Lawsuits Part 2- The Law of Vicarious Liability

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This is the second in my series of posts on some of the unique topics in BC Civil sexual assault lawsuits.  Yesterday I wrote about limitation periods, today I’ll address another important topic, the legal principle of “Vicarious Liability“.
Civil Lawsuits are designed to compensate victims who suffered harm at the hands of others.  Since one of the primary goals of civil litigation is compensation it is important to obtain judgement against a Defendant who has the ability to pay.  Otherwise the judgement may be worth little more than the paper it’s written on.
Lawyers call a judgement where a Defendant can’t pay a ‘dry judgement‘.  Given the stress, expense and time invested in a civil lawsuit the process is hardly worth the effort if a successful plaintiff ends up with a dry judgement.  In Civil sexual assault cases this often is a possibility.
Insurance contracts often contain exclusions for “intentional harm“.  Civil suits for damages for sexual assault are ‘intentional tort claims‘ and these are often caught by intentional harm exclusion clauses.  For this reason if a Defendant does not have assets (or applicable insurance coverage) a Plaintiff will have to consider whether a civil lawsuit will be worth the effort.
That is where the law of vicarious liability comes in.  Vicarious liability is a legal principle which in certain circumstances extends liability (fault) for a wrongful act to governments, corporations and institutions.  This doctrine can apply to intentional torts.
So in what circumstances can Courts impose vicarious liability in Canada?  This was addressed by the Supreme Court of Canada in a case called John Doe v. Bennett.  Specifically the Canadian High Court set out the following test:

20                              In Bazley, the Court suggested that the imposition of vicarious liability may usefully be approached in two steps. First, a court should determine whether there are precedents which unambiguously determine whether the case should attract vicarious liability.  “If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability”: Bazley, at para. 15;Jacobi, at para. 31. Vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public.  Effective compensation is a goal.  Deterrence is also a consideration.  The hope is that holding the employer or principal liable will encourage such persons to take steps to reduce the risk of harm in the future. Plaintiffs must show that the rationale behind the imposition of vicarious liability will be met on the facts in two respects. First, the relationship between the tortfeasor and the person against whom liability is sought must be sufficiently close. Second,  the wrongful act must be sufficiently connected to the conduct authorized by the employer. This is necessary to ensure that the goals of fair and effective compensation and deterrence of future harm are met: K.L.B., supra, at para. 20.

21                               In determining whether there is a sufficient connection in the case of intentional torts, factors to be considered  include, but are not limited to the following (Bazley, supra, at para. 41):

(a)   the opportunity that the enterprise afforded the employee to abuse his or her power;

(b)  the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c)   the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(d)  the extent of power conferred on the employee in relation to the victim;

(e)   the vulnerability of potential victims to wrongful exercise of the employee’s power.

The employer’s control over the employee’s activities is one indication of whether the employee is acting on his or her employer’s behalf: K.L.B., supra, at para. 22.  At the heart of the inquiry lies the question of power and control by the employer: both that exercised over and that granted to the employee. Where this power and control can be identified, the imposition of vicarious liability will compensate fairly and effectively.

In the Bennett Case the Supreme Court of Canada went on to find that ‘diocesan enterprise‘ could be held liable for the intentional abuse of a priest.  The Court stated as follows:

32                              In summary, the evidence overwhelmingly satisfies the tests affirmed in Bazley, Jacobi and K.L.B.  The relationship between the diocesan enterprise and Bennett was sufficiently close. The enterprise substantially enhanced the risk which led to the wrongs the plaintiff-respondents suffered. It provided Bennett with  great power in relation to vulnerable victims and with the opportunity to abuse that power.  A strong and direct connection is established between the conduct of the enterprise and the wrongs done to the plaintiff-respondents. The majority of the Court of Appeal erred in failing to apply the right test.  Had it performed the appropriate analysis, it would have found the Roman Catholic Episcopal Corporation of St. George’s vicariously liable for Father Bennett’s assaults on the plaintiff-respondents.

This was a crucial finding since priests take a vow of poverty.  Accordingly the Plaintiff may have faced a dry judgement if not for the doctrine of vicarious liability.  When considering a civil action for damages from sexual assault its important to consider if a Defendant has the ability to pay.  If not the analysis should extend to whether a Defendant with the ability to satisfy a judgement may be vicariously liable.

When Can a Third Party Be Responsible for Preventing Harm Intentionally Caused by Another? The Supreme Court of Canada Weighs in

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If someone is injured/killed intentionally by someone else can a third party be held civilly liable for failing to prevent the harm?  While the answer to this question turns heavily on the facts the answer can be yes and earlier this month the Supreme Court of Canada released a decision discussing this complex area of personal injury law.
In Fullowka v. Pinkerton’s of Canada Ltd. nine workers were killed in the course of a contentious labour dispute.   During the bitter strike one of the strikers “evaded security and surreptitiously entered the mine.  He set an explosive device which, as he intended, was detonated by a trip wire, killing nine miners.”
The survivors of the dead miners brought a lawsuit against various parties including the mine’s owners, their security firm and the territorial government claiming damages for “negligently failing to prevent the murders“.
The lawsuit largely succeeded at trial but was overturned by the Court of Appeal.  The Supreme Court of Canada ultimately sided with the Court of Appeal but before dismissing the case highlighted some important legal principles addressing the need to take reasonable steps in certain circumstances to prevent foreseeable intentionally inflected harm at the hands of others.  Some of the highlights of the Court’s discussion were as follows:

The analysis turns on whether the relationship between the appellants and the defendants discloses sufficient foreseeability and proximity to establish a prima facie duty of care and, if so, whether there are any residual policy considerations which ought to negate or limit that duty of care… The analysis must focus specifically on the relationships in issue, as there are particular considerations relating to foreseeability, proximity and policy in each…

[19] In my view, the relationship between the murdered miners and Pinkerton’s and the government meets the requirements of foreseeability and proximity such that a prima facie duty of care existed.  I also conclude that these prima facie duties are not negated by policy considerations…

[26] In cases of this nature, the law requires close examination of the question of proximity. The inquiry is concerned with whether the case discloses factors which show that the relationship between the plaintiff and the defendant was sufficiently close and direct to give rise to a legal duty of care, considering such factors as expectations, representations, reliance and the property or other interests involved….  Proximity is not confined to physical proximity, but includes “such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act”…

[27] The Court discussed proximity in detail in Childs, at paras. 31-46.  In Childs, as here, the proposed duty was to take care to prevent harm caused to the plaintiff by a third party; in other words, what was proposed there was a positive duty to act even though the defendant’s conduct had not directly caused foreseeable physical injury to the plaintiff. The Court noted that there are at least three factors which may identify the situations in which the law has recognized such duties (paras. 38-40).  The first is that the defendant is materially implicated in the creation of the risk or has control of the risk to which others have been invited.  The second is the concern for the autonomy of the persons affected by the positive action proposed.  As the Chief Justice put it: “The law … accepts that competent people have the right to engage in risky activities … [and] permits third parties witnessing risk to decide not to become rescuers or otherwise intervene” (para. 39). The third is whether the plaintiff reasonably relied on the defendant to avoid and minimize risk and whether the defendant, in turn, would reasonably expect such reliance….

The relevant question is whether the miners reasonably relied on Pinkerton’s to take reasonable precautions to reduce the risk.  The Court of Appeal found that was their reasonable expectation. This reasoning, in my view, supports rather than negates the existence of sufficient proximity.  The fact that, as the Court of Appeal noted, any higher expectation on the miners’ part would have been unreasonable was not relevant to the analysis.

[31] Pinkerton’s must have shared the miners’ expectation.  It was there to protect property and people. The whole point of its presence was to help secure the site so that the mine could continue to operate. The miners who continued to work during the strike made up a well-defined and identifiable group. Pinkerton’s surely ought to have expected that the very people it was there to protect would rely on it to exercise reasonable care in doing so.

[32] Pinkerton’s also undertook to exert some control over the risk..Pinkerton’s undertook to exert some control over everyone who came onto the property, including Mr. Warren…

[34] I conclude that the reasonable expectations of both the miners and Pinkerton’s as well as Pinkerton’s undertaking to exert some control over the risk to the miners supported the trial judge’s finding of proximity…

[70] The concern about indeterminate liability is not valid here.  This policy consideration has often held sway in negligence claims for pure economic loss. But even in that context, it has not always carried the day to exclude a duty of care.  The concern is that the proposed duty of care, if accepted, would impose “liability in an indeterminate amount for an indeterminate time to an indeterminate class”, to use the often repeated words of Cardozo C.J. in Ultramares Corp. v. Touche, 174 N.E. 441 (N.Y. 1931), at p. 444.  At the root of the concern is that the duty, and therefore the right to sue for its breach, is so broad that it extends indeterminately.  In this sense, the policy concern about indeterminate liability is closely related to proximity; the question is whether there are sufficient special factors arising out of the relationship between the plaintiff and the defendant so that indeterminate liability is not the result of   imposing the proposed duty of care: see, e.g., Canadian National Railway Co. v. Norsk Pacific Steamship Co., , [1992] 1 S.C.R. 1021, at p. 1153.  What is required is a principled basis upon which to draw the line between those to whom the duty is owed and those to whom it is not: see, e.g., Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., , [1997] 3 S.C.R. 1210, at para. 64, per McLachlin J. (as she then was).

[71] I do not see this as a difficulty here and, as a result, I do not think that the proposed duty of care exposes the government to indeterminate liability.  What is in issue is liability for physical injury to miners caused by an explosion in a mine which, it is alleged, would have been prevented had the government taken reasonable care in discharging its  statutory duties in relation to mine safety.  The duty is to the finite group of miners working in the mine which the inspectors had inspected repeatedly.  The potential liability is no more indeterminate than in the building inspector cases I reviewed earlier.

While this case was highly factually specific the legal principles discussed by the Supreme Court of Canada can be applied to more commonly seen fact patters.  One example of intentional harm at the hands of others are the unfortunate cases involving sexual abuse.  Where priests, teachers or other adults in authority sexually abuse young victims liability may extend beyond the person committing the crime.  In certain circumstances religious hierarchies have been found liable for sexual abuse committed by priests and school boards have been found liable for abuse committed by teachers.

The Supreme Court of Canada’s detailed reasoning in this case is welcome for anyone advancing a personal injury lawsuit involving an intentional harm seeking to extend liability further and I suggest that any Canadian lawyers prosecuting such a claim familiarize themselves with this judgement in full.

More on Liability of Registered Owners of Vehicles Involved in Collisions

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As I’ve previously written, section 86 of the Motor Vehicle Act makes owners or lessees of vehicles responsible for any damage or loss caused by the operation of their vehicle by an individual to whom consent was given.
Reasons for judgement were released today by the BC Supreme Court interpreting the meaning of ‘consent’.  In today’s case (Morris v. Morris) the Plaintiff was injured when riding as a passenger in a vehicle driven by his brother.  The vehicle was rented from Enterprise Rent-A-Car.   The Plaintiff sued the driver and the rental car company.
The vehicle, however, was not rented to the Plaintiff’s brother, but rather his mother.  The rental contact stated “No Other Driver Permitted“.   Despite this restriction, after renting the vehicle the Plaintiff’s mother let the Plaintiff’s brother drive the vehicle.
The issue at trial was whether, in these circumstances, Enterprise Rent-A-Car could be held liable as registered owner.  A recent case (McEvoy v. McEachnie) held that a registered owner can be held liable in similar circumstances (click here to read my summary of the McEvoy case).  In today’s case, however, Mr. Justice Cole refused to follow the precedent set in McEvoy finding that the judge in that case “failed to consider binding authority“.  In finding the rental company not liable as having not consented to the driver operating the vehicle Mr. Justice Cole summarized the law and distinguished the McEvoy case as follows:

[31] The most recent case from British Columbia dealing with the interpretation of implied consent under s. 86 of the Act, and the plaintiff argues I am bound by that decision, isMcEvoy v. McEachnie, 2008 BCSC 1496 [McEvoy]. In that case, a father gave his daughter consent to drive his vehicle but made it expressly clear that no other drivers were permitted. The daughter subsequently allowed her friend to drive the vehicle, because she was intoxicated, and an accident ensued. In finding the father liable, the Court appliedBarreiro, a case where a rental car employee consented to a vehicle being rented by an underage driver, contrary to company procedure, and interpreted it, at para. 32, to stand for the proposition that:

[32] … so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car. That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[32]         The Court in McEvoy concluded that, except for the fact that the father did not obtain a financial benefit from the friend’s possession of the vehicle, the case was not distinguishable from Barreiro. In the present case, other than the fact that the agreement forbidding other drivers was written, rather than oral, the facts cannot be distinguished  from McEvoy. Enterprise freely gave the keys to Ms. Kauth, she freely gave the keys to Mr. Morris, despite expressly agreeing that there would be no other drivers. Enterprise would, on the logic of McEvoy, be taken to have consented to Mr. Morris’ possession of the vehicle and therefore, Enterprise would be vicariously liable pursuant to s. 86 of the Act for any liability that Mr. Morris may have for this accident.

[33]         On its face, it would appear that this decision would be binding on this Court, because the facts cannot be differentiated merely because the agreement in McEvoy was oral and not written. In Hansard, Spruce Mills Ltd., Re (1954), 4 D.L.R. 590 at 592, 13 W.W.R. (N.S.) 285 (B.C.S.C.) [Hansard], the Court held that a trial judge should follow the decisions of his brother judges of the same court unless subsequent decisions have affected the validity of the impugned judgment; it is demonstrated that some binding authority in case law or some relevant statute was not considered; or the judgment was unconsidered, where an immediate decision is given without the opportunity to fully consult authority. If none of these situations exist, barring a distinguishing feature between the facts, a court would be correct in following decisions of a court of the same level.

[34] On the basis of the test set out in Hansard, McEvoy in my view is not binding on this Court as it failed to consider binding authority. In Godsman, Smaldino, Prasad and Louisthe Court refused to find consent where it would not have been given in the circumstances. McEvoy overlooks these decisions and does not consider this test.

[35] The Court instead held the father liable because they interpreted Barreiro to mean that if keys are transferred by free will to the daughter, the father is deemed to consent to subsequent transfers of possession including his daughter’s friend’s possession. However, in Barreiro the company transferred possession to the rental car employee and gave the employee the authority to transfer possession to people wishing to rent the vehicle. Therefore the employee had authority to transfer the vehicle subject to following proper procedures, but in McEvoy the daughter lacked authority to transfer the vehicle.

[36] Furthermore, the Court in McEvoy relied upon Morrison to support the finding of consent. In Morrison, consent was given subject to conditions upon the authorized driver, namely that the company vehicle was not to be operated by an employee for personal use. These conditions were breached, but the Court held that the conditions did not vitiate the consent. In McEvoy, the Court interpreted “no other drivers” as a condition. However, in my view there is a distinction between no consent at all and consent subject to conditions. The Court should first find implied consent exists on all the circumstances and then apply Morrison to any conditions added to that implied consent: K.T. v. Tran, 2007 ABCA 13, 280 D.L.R. (4th) 142.

[37] Had the Court in McEvoy considered Godsman, Smaldino, Prasad and Louis, the result may have still been the same on the second ground for finding consent, stated by Mr. Justice Rogers, but not on the first. Based on Godsman, Smaldino, Prasad and Louis, consent can only be implied if it would have been granted as a matter of course in the circumstances. In McEvoy, the father’s purpose in telling the children to not let others drive his cars was not to limit his statutory liability as the car’s owner, but because he trusted his kids but not their friends and he wanted to keep his children and his cars safe. It could be argued that the father in McEvoy would have consented in the circumstances to the friend driving because his daughter was intoxicated and he would want the car and his daughter home safely. On the present facts, like in Prasad, it is hard to imagine that Enterprise would have given consent in the circumstances.

[38] The trend in our jurisprudence tends to be more restrictive than the broad policy approach that is taken in some United States jurisdictions and in some degrees by the Alberta courts. I am satisfied that the test for implied consent in British Columbia is whether the owner would have consented in the circumstances:  Godsman, Smaldino, Prasad and Louis. Based on the facts of the present case, there was no express consent given by Enterprise to Mr. Morris and in my view, it is clear that consent would not have been given in the circumstances. Enterprise did everything possible to limit its liability and if its liability is to be extended in any event, to prefer the protection of third parties, then that is the job of the Legislature to rewrite the wording of the statute.

[39] I therefore dismiss the action against the defendant Enterprise and they are entitled to their costs.

I understand that the McEvoy case is going to be heard by the BC Court of Appeal in the near future and the law of ‘consent’ with respect to registered owner liability should hopefully be more clear after they weigh in on this issue.

Registered Vehicle Owners and Fault in BC – A Heavy Burden

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 86 Comments on Registered Vehicle Owners and Fault in BC – A Heavy Burden

(Please note the case discussed in this post was overturned by the BC Court of Appeal.  Please go to the September 2010 Archives of this site to read my article discussing the BC Court of Appeal decision)
The law places a very heavy burden on vehicle owners in BC when their vehicles are involved in an at-fault collision.  In British Columbia registered owners are “vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent (express or implied) of the owner“.
What this means is, if you let someone else operate your vehicle and they are at fault for a crash then you are at fault for that crash.  Reasons for judgement were released today showing just how far Courts in BC can go in determining the circumstances in which an owner “consents” to someone else operating their vehicle.
In today’s case (Snow v. Friesen) the Plaintiff was seriously injured in Vernon BC when a vehicle owned by a man named Mr. Saul and driven by a woman named Ms. Friesen struck the Plaintiff while walking on a sidewalk.  The Defendant driver apparently fell asleep at the wheel and lost control.
The Court found that Mr. Saul did not intend to let Ms. Friesen borrow his vehicle, he in fact did so by mistake.  Mr. Justice Williams found that Ms. Friesen asked to borrow Mr. Saul’s vehicle but at the time he was busy working and did not hear her because he was hard of hearing and had his hearing aid out.  As a result Mr. Saul mistakenly thought someone else was asking to borrow his vehicle so he granted permission,   Notwithstanding this interesting factual finding the Court went on to find that Mr. Saul was still vicariously liable for the collision because his actions constituted “express consent” under section 86 of the BC Motor Vehicle Act.
The Court’s discussion of the law of liability of registered owners is set out below.  This case is worth reviewing in full for all vehicle owners in British Columbia as it shows the serious duties courts impose on vehicle owners when they let others take possession of their vehicles:

[68] Pursuant to the common law and s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, an owner of a vehicle is vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent, express or implied, of the owner.

[69] As is apparent from my analysis of the evidence and findings of fact, the implied consent doctrine does not arise in this case.  Instead, the issue stands to be determined on the basis of express consent.  Specifically, it is necessary to decide whether, in these circumstances, the plaintiff has proven that Ms. Friesen had the vehicle with the consent of Mr. Saul.

[70] I consider the following statement of Thackray J.A. in Barreiro v. Arana, 2003 BCCA 58, to be apposite:

[13]      Whether there was consent must be determined by reference to the facts and by the application of general legal principles viewed in the context of the statutory scheme.  The issue of consent is not, as suggested by the trial judge, “defined by s.86”: however the statute is the governing factor.

[71] The cases are replete with reference to the notion of public policy and the necessity of recognizing the legislative intent of s. 86.  Again, I will resort to a quotation from Barreiro:

[26]      The effect that legislative intent has upon the meaning of “consent” is emphasized by the words of Goldie J.A. in Morrison as quoted by the trial judge:

[24]  It is apparent the legislature has imposed a heavy burden on those who have within their power the control of motor vehicles. … The reason for legislative intervention may be traced, in part at least, to the appalling consequences of reckless use of motor vehicles.  Irresponsibility on the part of those who may deny or confer possession of motor vehicles may be seen as the reason for the legislative initiative.  The legislation in question must be regarded as remedial.

[27]      Legislative intention must be acknowledged as having a fundamental purpose and as having been inspired by a need.  As Mr. Justice Goldie said, the legislation is remedial.  As such it might well be at odds with traditional legal concepts of agency, but that will not deny its validity.

[28]      The legislative intent in section 86 must be taken, as noted by Goldie J.A. in Morrison, to address the reckless use of motor vehicles and the section imposes “a heavy burden on those who have within their power the control of motor vehicles.”  In Bareham, Mr. Justice MacDonell, after reviewing the statute, said at 194:

In this case, the only policy reasons to be considered are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners.

[72] A helpful discussion of the importance of bearing in mind the underlying rationale, or legislative purpose, of the legislation is found in Yeung (Guardian ad litem of) v. Au, 2006 BCCA 217, where the matter was touched upon by Newbury J.A., writing for a five judge division of the Court, although the issue there was principally one of determining the liability of an individual who held rights under a conditional sales contract.  Nevertheless, she considered the social and economic policy objectives of the legislation, and the legislative intention.  Her analysis is found at paras. 32 through 38.  I will not reproduce the entire discussion, but consider it worthwhile to quote a portion of her conclusion as found at para. 38:

… the purposes of s. 86 are, I would suggest, similar – to expand the availability of compensation to injured plaintiffs beyond drivers who may be under-insured or judgment-proof, and to encourage employers and other owners to take care in entrusting their vehicles to others.  These objectives are consonant with the objectives of vicarious liability generally, as described by McLachlin J. (now C.J.C.) in Bazley v. Curry [1999] 2 S.C.R. 534, 62 B.C.L.R. (3d) 173, the leading Canadian case on vicarious liability.

[Emphasis added.]

[73] In my view, the outcome which must result in the facts at bar is determined by an application of the leading decision on the issue, Vancouver Motors U-Drive Ltd. v. Terry, [1942] S.C.R. 391.  There, an employee of Vancouver Motors U-Drive Ltd. had rented an automobile to a driver who had no valid licence.  The driver had falsely represented that he was another person, and showed that person’s valid driver’s licence.  He signed that person’s name to the rental agreement.  The driver was subsequently involved in an accident, and the appellant argued that it was not vicariously liable because the negligent driver had not acquired possession of the car with the appellant’s consent.  In interpreting a legislative provision similar to s. 86 of the Motor Vehicle Act, Kerwin J., for the majority, stated as follows:

In the present case, the appellant physically transferred the possession of the motor vehicle to Walker. Does the fact of Walker’s false statement that he was Hindle and the holder of a subsisting driver’s licence, accompanied by the forgery of Hindle’s name, vitiate the consent that was in fact given? There may be no difficulty in two of the hypothetical cases put in argument, (1) where a motor vehicle is stolen from a garage, and (2) where possession is obtained from the owner by duress. In the first there would be no consent in fact and in the second the owner would not have been at liberty to exercise his free will. On the other hand, the class of owners under subsection 1 of section 74A is not restricted to those who carry on such a business as the appellant and circumstances may be imagined where an owner loaned his automobile to a friend on the latter’s statement that he possessed a subsisting driver’s licence, which statement might be false either because he never had possessed such a licence or because his current licence had been revoked; or again, where A secured possession of an automobile by falsely representing himself in a telephone conversation with the owner of the vehicle to be a neighbour’s chauffeur. It is impossible to conceive all the various circumstances that might give rise to the question to be determined here but in my view an express consent is given, within the meaning of the enactment, when possession was acquired as the result of the free exercise of the owner’s will.

[74] Later, Kerwin J. reached the following conclusion:

The word “consent” may have different meanings in different statutes. In the present case it has, in my opinion, the meaning already indicated and, on that construction, express consent was given by the employees of the appellant to Walker’s possession of the motor vehicle even though the action of the employees was induced by Walker’s false statements.

[75] In this case, Mr. Saul, of his own free will, absent duress or theft, gave consent to the person who asked to use the motor vehicle.  The fact that Mr. Saul was mistaken as to the identity of that individual does not change the outcome.

[76] In Vancouver Motors U-Drive, consent was not vitiated even though the agent/employee was misled as to the identity of the person renting the car.  In Bareham (Guardian ad litem of) v. Desrochers, [1994] B.C.J. No. 1826, 97 B.C.L.R. (2d) 186 (S.C.), on an application of the same principle, the mother of the driver argued that she had not consented to her son having her vehicle because she was not aware that he had no driving licence.  The trial judge there, Macdonell J., found that once the mother gave consent, the fact that her son was driving her car illegally was irrelevant to the application of s. 86(1).

[77] The erroneous basis upon which Mr. Saul granted his consent is no defence.  The onus was on him to ensure the public safety in lending his truck.  The statute imposes a duty upon him, which duty includes knowing and assessing the fitness of the driver who seeks to have his vehicle.  The heavy burden which is imposed upon motor vehicle owners was not met.

[78] In the present case, Mr. Saul did not take steps to confirm the identity of the person who sought to use his vehicle, other than relying upon what turned out to be the assumption of Mr. Connolly.

[79] The focus of the analysis is on whether the owner gave express consent to the individual who seeks to have the vehicle.  Once that is found, as the facts of that case indicate, there is not a great deal which will impact upon the imposition of liability.

[80] While judicial interpretation of s. 86(1) may, at first glance, appear overly strict, as Paris J. stated in Beaudoin v. Enviro-Vac Systems Inc., [1992] B.C.J. No. 205, 1992 CanLII 444 (S.C.), at para. 13:

The Legislature has placed a very heavy onus on the owner of a motor vehicle who chooses to permit another to drive it. Whether that policy is or is not draconian is not for me to say.

[81] I have no doubt that the outcome here may seem harsh from the perspective of Mr. Saul.  However, holding him liable fits within the purpose of s. 86(1) and the manner in which it has been applied.  From a broader policy perspective, it fits within what has been found to be the most efficient and effective risk allocation from both an economic and public safety perspective, two elements that are central to s. 86(1).