2005 BCCA 481err1 Arishenkoff v. British Columbia

Before:	The Honourable Chief Justice Finch
	The Honourable Madam Justice Southin
	The Honourable Madam Justice Prowse
	The Honourable Madam Justice Saunders
	The Honourable Mr. Justice Thackray

W. A. Pearce, Q.C. and K. W. Inaya	Counsel for the Appellant by Cross Appeal (the Crown)
F. A. Schroeder and M. Pongracic-Speier	Counsel for the Respondents by Cross Appeal
Place and Date of Hearing:	Vancouver, British Columbia
7th April, 2005
Place and Date of Judgment:	Vancouver, British Columbia
6th October, 2005

Written Reasons of the Court

Reasons for Judgment of the Court:

I. INTRODUCTION

[1] This is a cross appeal by the Crown from this order of the Honourable Madam Justice Kirkpatrick pronounced the 22nd July, 2002:

THIS COURT ORDERS that:

1. The point of law raised by the defendants pursuant to Rule 34 of the Rules of Court is answered that the Crown can be liable for a tort alleged to have been committed before the Crown Proceedings Act came into force on August 1, 1974.

2. The claim of the plaintiff Lawrence Poznikoff be, and the same is hereby, dismissed.

3. The application of the plaintiffs, Lawrence Poznikoff, Tina Makonin, and Naida Hamoline that section 3(4)(k) of the Limitation Act violates section 15 of the Canadian Charter of Rights and Freedoms be, and the same is hereby, dismissed.

[2] By Supreme Court Rule 34:

34 (1) A point of law arising from the pleadings may, by consent of the parties or by order of the court, be set down by praecipe for hearing and disposed of at any time before the trial.

(2) Where, in the opinion of the court, the decision on the point of law substantially disposes of the whole action or of any distinct claim, ground of defence, set-off, counterclaim or reply, the court may dismiss the action or make any order it thinks just.

[3] We infer the point of law intended to be referred to is that stated in paragraph 26 of the statement of defence of the Crown, filed 7th September, 2001, and amended the 11th April, 2002:

26. At common law the Sovereign can do no wrong, which means that the Crown cannot be found vicariously liable for the torts of Her servants because the Sovereign cannot be deemed to have authorized an unlawful act. With the enactment of the Crown Proceeding Act the Crown became subject to all the liabilities to which it would be liable if it were a person for torts committed arising after August 1st, 1974. However the Crown Proceeding Act has no application in this case because the facts allege the commission of a tort before August 1st, 1974.

[4] By paragraph 27, the Crown raised a further point of law:

27. In further response to the entire Statement of Claim the Defendant states that any cause of action that the Plaintiffs might have had expired by the passage of time in accordance with legislation respecting the limitation of actions. The Defendant further pleads and relies upon s. 3(2)(a) and (e) of the Crown Proceeding Act.

[5] It is the second point of law which underlies the second paragraph of the order.

[6] The six plaintiffs whose claims are affected by this cross appeal are all children of Doukhobor parents. They allege they were sexually assaulted by employees or agents of the Crown at various times between 1953 and 1959 during their confinement in a residential school at New Denver, British Columbia, when they were between the ages of 5 and 15 years.

[7] Together with other former residents of the New Denver School, these six plaintiffs commenced an action against the Provincial Crown by Writ of Summons issued on 4th April, 2001, amended 13th December, 2001. There is no ultimate time limitation under the Limitation Act, R.S.B.C. 1996, c. 266, for actions alleging sexual assault.

[8] On 1st August, 1974, the Province of British Columbia enacted the Crown Proceedings Act, S.B.C. 1974, c. 24, subsequently renamed, by R.S.B.C. 1979, c. 86, the Crown Proceeding Act. That statute abolished proceedings against the Crown by petition of right, dispensed with fiats, and rendered the Crown subject to all those liabilities to which it would be liable if it were a person.

[9] The plaintiffs contend that the 1974 Act enabled them to sue the Crown in 2001 for wrongs alleged to have been committed by its servants or agents in the 1950's.

[10] If the Crown succeeds in its cross appeal, the claims of those plaintiffs will fail.

II. PROCEDURAL HISTORY

[11] The allegations in the statement of claim are of two sorts – sexual abuse and non-sexual abuse. The claims of Lawrence Poznikoff, who did not allege sexual abuse, were used as a test case for many of the issues raised. The dismissal of his action, in effect, results in the dismissal of all claims for non-sexual torts.

[12] The Crown applied by notice of motion dated 30th October, 2001 for an order pursuant to Rule 18A that the claims of Lawrence Poznikoff be dismissed for the reason that the action was commenced by writ issued 4th April, 2001 – outside the applicable limitation period under the statute of limitations.

[13] The Crown also applied, as we have said, under Rule 34 for the determination of the point of law mentioned in paragraph 3 supra.

[14] For their part, the plaintiffs, Lawrence Poznikoff, Tina Makonin and Naida Hamoline, applied for a declaration that s. 3(4)(k) of the Limitation Act violates s. 15 of the Canadian Charter of Rights and Freedoms.

[15] Upon the learned judge's reasons being delivered on the 22nd July, 2002, 215 D.L.R. (4th) 744, 4 B.C.L.R. (4th) 58, 2002 BCSC 951, the plaintiffs appealed against the dismissal of their action.

[16] They asserted that the learned chambers judge erred in holding their claims to be barred under the Statute of Limitations, R.S.B.C 1948, c. 191 (the statute in force at the time of Mr. Poznikoff's release from the residential school in September 1956, being the date "the right to [sue] arose"), erred in holding Mr. Poznikoff’s claims were barred under s. 8(1)(c) of the Limitation Act, R.S.B.C. 1996, c. 266, and erred in holding that s. 3(4)(k) of that Act does not discriminate on the basis of disability contrary to s. 15 of the Charter.

[17] The defendant Crown cross appealed against that part of the chambers judge’s order holding that the Crown can be liable for a tort alleged to have been committed before the Crown Proceedings Act came into force on 1st August, 1974.

[18] The appeal and cross appeal were argued before a three-judge panel of this Court in March 2004. The Court pronounced reasons for judgment on 1st June, 2004, 241 D.L.R. (4th) 385, 30 B.C.L.R. (4th) 1, 2004 BCCA 299. The Court dismissed the plaintiffs’ appeal, agreeing (para. 87) with the learned chambers judge that all causes of action pleaded by Mr. Poznikoff were barred by the provisions of the Limitation Act before he commenced his action in 2001 and holding that s. 3(4)(k) did not violate his equality rights under s. 15 of the Charter (paras. 101-152).

[19] The Court held that because the appeal was dismissed, the cross appeal should also be dismissed as hypothetical. However, in the course of its reasons, the Court considered the substance of the cross appeal in some detail (para. 57 and paras. 88-100). In particular, the Court considered the question of whether this Court’s earlier decision in B.(K.L.) v. British Columbia (1999), 64 B.C.L.R. (3d) 23 (C.A.), was correct, expressing in obiter dicta, an apparent preference for the dissenting opinion of Madam Justice Ryan in that case (paras. 94, 97 and 98).

[20] Following pronouncement of the Court of Appeal reasons, counsel for the defendant Crown wrote to the Court asking for a ruling on the cross appeal. He said the disposition of the cross appeal was not hypothetical, because it left in force the chambers judge’s ruling that the Crown can be liable for a tort alleged to have been committed before the Crown Proceedings Act came into force on 1st August, 1974. This ruling meant that the Crown might be held liable for claims not barred by the ultimate 30 year limitation in the Limitation Act (that is, allegations of sexual assault for which there is no limitation period by virtue of s. 3(4)(k) and s. 3(4)(l) of the Limitation Act).

[21] Counsel for the plaintiffs opposed the Crown’s application for a rehearing of the cross appeal.

[22] After considering the written submissions of counsel, the original panel decided that it would not be appropriate to dismiss the Crown’s cross appeal as hypothetical and that it would be necessary for a panel of five judges to consider the outstanding question, namely, the correctness of this Court’s decision in B.(K.L.) v. British Columbia. Thus, the cross appeal is now before this panel of five.

III. LEGISLATION

[23] In order to answer the question now in issue, one must have regard for the whole of the statute. Therefore, we reproduce it:

1974 CROWN PROCEEDINGS CHAP. 24

CHAPTER 24

Crown Proceedings Act

[Assented to 3rd May, 1974.]

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1. In this Act, unless the context otherwise requires,

"agent", when used in relation to the Crown, includes an independent contractor employed by the Crown;

"Crown" means Her Majesty the Queen in right of the Province;

"officer of the Crown" includes a minister of the Crown and an employee of the Crown;

"order" includes a judgment, decree, rule, award, and declaration;

"person" does not include the Crown;

"proceedings against the Crown" includes a claim by way of set-off or counterclaim raised in proceedings by the Crown, an interpleader proceeding to which the Crown is a party, and a proceeding in which the Crown is a garnishee.

2. Subject to this Act,

(a) proceedings against the Crown by way of petition of right are abolished;

(b) a claim against the Crown, that, if this Act had not been passed, might be enforced by petition of right, subject to the grant of a fiat by the Lieutenant-Governor, may be enforced as of right by proceedings against the Crown in accordance with this Act, without the grant of a fiat by the Lieutenant-Governor;

(d) the law relating to indemnity and contribution is enforceable by and against the Crown in respect of any liability to which it is subject, as if the Crown were a person.

3. (1) This Act is subject to the Workers' Compensation Act and does not apply to

(a) proceedings authorized by or arising out of

(i) the Income Tax Act; or

(ii) the Corporation Capital Tax Act; or

(iii) the Logging Tax Act; or

(iv) the Succession Duty Act;

(b) proceedings in respect of the Assurance Fund under the Land Registry Act; and

(2) Nothing in section 2

(a) authorizes proceedings against the Crown in respect of anything done or omitted to be done by any person who is acting reasonably and in good faith while discharging or purporting to discharge responsibilities

(i) of a judicial nature vested in him; or

(ii) that he has in connection with the execution of judicial process; or

(b) subjects the Crown to greater liability in respect of the acts or omissions of an independent contractor employed by the Crown than that to which the Crown would be subject in respect of such acts or omissions if it were a person; or

(d) authorizes proceedings against the Crown in respect of a cause of action that is enforceable against a corporation or other agency owned or controlled by the Crown; or

(e) authorizes proceedings against the Crown in respect of anything done in the due enforcement of the criminal law or the penal provisions of any Act; or

(f) subjects the Crown, in its capacity as a highway authority, to any greater liability than that to which a municipal corporation is subject in that capacity.

4. (1) Subject to this Act, all proceedings against the Crown in the Supreme Court shall be instituted and proceeded with in accordance with the Supreme Court Act.

(2) Subject to this Act, and to any enactment limiting the jurisdiction of a County Court, any proceeding against the Crown may be instituted in a County Court and proceeded with in accordance with the County Courts Act.

(3) In proceedings against the Crown, the trial shall be without a jury.

5. Nothing in this Act authorizes proceedings against the Crown under the Small Claims Act.

6. Subject to this Act, all enactments and rules of court relating to appeals and stay of proceedings shall, with the necessary changes and so far as are applicable, apply to proceedings against the Crown and proceedings in which the Crown is a party.

7. In proceedings under this Act, the Crown shall be designated "Her Majesty the Queen in right of the Province of British Columbia."

8. A document to be served on the Crown shall be served by leaving a copy with the Attorney-General, the Deputy Attorney-General, or any barrister or solicitor employed in the Department of the Attorney-General.

9. (1) In proceedings against the Crown and proceedings in which the Crown is a party, the rules of the court in which the proceedings are pending as to discovery and inspection of documents, examination for discovery, and interrogatories apply in the same manner as if the Crown were a corporation.

(2) Subsection (1) is without prejudice to any rule of law that authorizes or requires the withholding of any document, or the refusal to answer any question, on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.

(3) Where the Crown claims that the disclosure of the document or the answering of the question would be injurious to the public interest, the court may, after holding such inquiry as it considers necessary and reasonable, and upon finding that public interest in the administration of justice should prevail over public interest in withholding the document or answering the question, order, subject to conditions or restrictions as it considers appropriate, production and discovery of the document or that the question be answered.

10. The Crown may, notwithstanding that an application for relief is made by a sheriff or bailiff or other like officer, obtain relief by way of interpleader proceedings, and may be made a party to the proceedings in the same manner as a person may obtain relief by way of such proceedings or be made a party thereto; and the provisions relating to interpleader provisions under the Supreme Court Act and the County Courts Act shall, subject to this Act, apply to the proceedings.

11. (1) In proceedings against the Crown and proceedings in which the Crown is a party the rights of the parties shall, subject to this Act, be as nearly as possible the same as in a suit between person and person, and the court may

(a) make any order, including an order as to costs, that it may make in proceedings between persons; and

(b) otherwise give such appropriate relief as the case may require.

(2) Where, in proceedings against the Crown, relief is sought that might, in proceedings between persons, be granted by way of injunction or specific performance, the court shall not, as against the Crown, grant an injunction or make an order for specific performance; but may make an order declaratory of the rights of the parties instead of an injunction or an order for specific performance.

(3) No person shall avail himself

(a) of any set-off or counterclaim in proceedings by the Crown for the recovery of taxes, duties, or penalties; or

(b) in proceedings of any other nature by the Crown, of any set-off or counterclaim arising out of a right or claim to repayment in respect of any taxes, duties, or penalties.

(4) The court shall not in any proceeding grant an injunction or make an order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown that could not have been obtained in proceedings against the Crown; but may make an order declaratory of the rights of the parties instead of granting the injunction or making the order.

(5) No person shall, without leave of the court, avail himself of any set-off or counterclaim in proceedings by the Crown, unless the subject-matter of either the set-off or the counterclaim relates to a matter under the administration of the particular Government department with respect to which the proceedings are brought by the Crown.

(6) In proceedings against the Crown in which the recovery of land or other property is claimed, the court shall not make an order for the recovery of the land or the delivery of the property; but may, in lieu thereof, make an order declaring that the claimant is entitled, as against the Crown, to the land or property or to the possession thereof.

12. A judgment debt due to or from the Crown bears interest in the same way as a judgment debt due from one person to another.

13. (1) Subject to this Act, where in proceedings against the Crown, and proceedings in which the Crown is a party, an order for costs or any other order is made by a court against the Crown, the proper officer of the court shall, on an application in that behalf, issue a certificate thereof.

(2) Where the court so directs, a separate certificate shall be issued with respect to the costs, if any, ordered to be paid to the applicant.

(3) A certificate issued under this section may be served upon the person for the time being named in the record as the solicitor, or as the person acting as solicitor, for the Crown.

(4) Where the order provides for the payment of money by way of damages or otherwise, or of costs, the certificate shall state the amount so payable; and the Minister of Finance shall, subject as hereinafter provided, pay out of the Consolidated Revenue Fund to the person entitled, or to his order, the amount appearing by the certificate to be due together with the interest, if any, lawfully due thereon.

(5) The court by which such an order is made or a court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of the amount so payable, or any part thereof, shall be suspended; and, if the certificate has not been issued, may order the direction to be inserted therein.

(6) No execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Crown of money or costs.

(7) This section applies to litigation pending at the time this Act comes into force.

14. This Act shall not prejudice the right of the Crown to take advantage of the provisions of any Act of the Legislature; and, in proceedings against the Crown, any Act of the Legislature that could, if the proceedings were between persons, be relied upon by the defendant as a defence to the proceedings, whether in whole or in part, or otherwise, may, subject to any express provision to the contrary, be so relied upon by the Crown.

15. (1) Except as otherwise provided in this Act, this Act does not affect proceedings against the Crown that have been instituted before the coming into force of this Act; and, for the purposes of this section, proceedings against the Crown by petition of right shall be deemed to have been instituted if a petition of right with respect to the matter in question has been submitted for consideration to the Lieutenant-Governor before the coming into force of this Act.

(2) Subject to subsection (1), this Act does not apply to a cause of action that existed on the day before the date this Act comes into force.

16. (1) Subject to subsection (2), the Crown Procedure Act, being chapter 89 of the Revised Statutes of British Columbia, 1960, is repealed.

(2) Notwithstanding the repeal of the Crown Procedure Act, that Act applies to a cause of action in respect of proceedings against the Crown that arose before the date this Act comes into force, whether or not it is or is considered to be a cause of action continuing after the date this Act comes into force.

(3) The Crown Costs Act, being chapter 87 of the Revised Statutes of British Columbia, 1960, is repealed.

17. (1) This Act, excepting this section and the title, comes into force on a date to be fixed by the Lieutenant-Governor by his Proclamation, and he may fix different dates for the coming into force of the several provisions.

(2) This section and the title come into force on Royal Assent.

[24] Neither s. 15 nor s. 16(1) were carried forward into the 1979 revision. Subsection 16(2) was carried forward into the 1979 Act as s. 17. Section 17 was subsequently dropped from R.S.B.C. 1996, c. 89. However, by the operation of the Statute Revision Act, R.S.B.C. 1996, c. 440, and the Revised Statutes Act, R.S.B.C. 1979, Appendix Part A - both of which provide that previous statutes are only repealed to the extent that they are incorporated into a revision - s. 17 of the 1979 Act and s. 15 of the 1974 Act were still in force at the time the plaintiffs commenced their actions.

[25] There have been some minor amendments to the statute since its enactment. It was not suggested before us that they are material.

IV. B.(K.L.) v. BRITISH COLUMBIA

[26] What this case actually decided is a nice question we need not answer. The difficulty which it causes is twofold: it adopts the analysis of Shaw J. in Botting v. British Columbia (1996), 27 B.C.L.R. (3d) 106 (S.C.) as to the origins of Crown immunity from actions in tort and founds part of its reasoning on its rejection of the submissions of the Crown which were themselves off the mark and from which before us it has resiled.

[27] In Botting v. British Columbia, there was no need for Shaw J. to consider the foundations of the maxim that the King can do no wrong. The neat point was whether the negligent design and construction before the 1st August, 1974 of a bridge was actionable when the plaintiff's injuries resulting from the breach did not occur until 1992 or thereabouts. It would have been sufficient for Shaw J. to have held that the plaintiff's cause of action arose when the injuries were suffered, damage being an essential ingredient of an action in negligence. To put it another way, he could have held that the breach of the duty of care was a continuing breach and thus the plaintiff's action was within the permission granted by the Act of 1974.

[28] As to the reasoning on the so-called discoverability rule, the Crown's position can be summarized thus (B.(K.L.) at para. 6):

1. Before 1 August 1974, the Crown Procedure Act would have been an absolute bar to this action.

2. The causes of action sought to be advanced by the plaintiffs are, in the language of s. 15(2) of the 1974 Act, ones that existed on the day before 1 August 1974. The 1974 Act therefore does not apply to them.

3. Similarly, the causes of action now sought to be put forward are ones which, in the language of s. 17 of the 1979 Act, "arose before August 1, 1974" and therefore cannot be advanced under that Act.

The reference in the first point is to the Crown Procedure Act, R.S.B.C. 1960, c. 89.

[29] But the difficulty with this submission was and is that the Crown Procedure Act was not what barred actions against the Crown in tort. What barred actions against the Crown in tort was a common law rule.

[30] That Act was nothing more than a modernized version of the Petitions of Right and Crown Procedure Act, S.B.C. 1873, c. 19, the preamble to which was:

WHEREAS it is expedient to make provision for proceeding by petition of right in this Province, and to assimilate the proceedings on such petitions and in proceedings in that behalf of the Crown, as nearly as may be to the course of practice and procedure now in force in actions and suits between subject and subject:

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:– ....

[31] The 1873 Act was itself modelled upon the Petitions of Right Act, 1860, 23 & 24 Vict., c. 34 (Imp.), which began thus:

WHEREAS it is expedient to amend the Law relating to Petitions of Right, to simplify the Procedure therein, to make Provision for the Recovery of Costs in such Cases, and to assimilate the Proceedings, as nearly as may be, to the Course of Practice and Procedure now in force in Actions and Suits between Subject and Subject: Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows:....

[32] There is no substantive difference between the 1873 Act and the Imperial Act.

[33] As the Mainland Colony of British Columbia had not existed until 1858 and the United Colonies of Vancouver Island and British Columbia did not exist until 1866, and the Province of British Columbia did not come into being as part of Canada until 1871, the British Columbia statute of 1873 and all the statutes that followed upon it did no more than provide a mechanism for such claims as could be brought against the Crown at common law to be pursued in what is now this Province.

[34] As to the import of the Act of 1860, one need only look at the judgment of Erle C.J., delivering the judgment of a court consisting of himself, Williams J., Willes J. and Keating J. in Tobin v. The Queen (1864), 16 C.B. (N.S.) 309 at 353, 143 E.R. 1148:

The complaint is, of a wrong done in destroying a ship; and the claim is for damages, the same as might have been awarded, if, instead of a petition of right, an action of trespass had been brought against the trespasser. For the purpose of showing that a petition of right cannot be maintained for this complaint, we propose to refer, first to the principle that the sovereign cannot be guilty of a wrong, and so cannot be made liable to pay damages for a wrong of which he cannot be guilty, and then to the authorities which show where a petition of right will and where it will not lie,– premising that the statute 23 & 24 Vict. c. 34 alters only the form of procedure to be adopted by suppliants resorting to a petition of right, and does not alter the law relating to the subjects for which the petition of right can be maintained; it being declared by s. 7, that no remedy is thereby given which was not before existing.

The maxim that the King can do no wrong is true in the sense that he is not liable to be sued civilly or criminally for a supposed wrong. That which the sovereign does personally, the law presumes will not be wrong: that which the sovereign does by command to his servants, cannot be a wrong in the sovereign, because, if the command is unlawful, it is in law no command, and the servant is responsible for the unlawful act, the same as if there had been no command....

and, at 365:

We refer to these matters of conjecture consistent with the facts as they are stated in the cases; and, on the review, we come to the conclusion that principle and authority coincide in showing that a petition of right lies not to recover unliquidated damages for a mere wrong,....

[35] It is interesting to note that Erle C.J. concluded his reasons thus, at 368:

The result has the sanction of all my learned Brothers who heard the argument; but I am desirous of adding that some of the reasons have not the concurrence of my much respected Brother Willes.

[36] See also this passage from the judgment of Prendergast J., later C.J.M., in Canadian Dominion Engineering Co., Ltd. v. The King in the Right of the Province of Manitoba, [1919] 2 W.W.R. 762 at 764:

It has been held in England that sec. 7 of The Petitions of Right Act (23 & 24 Vict. ch. 34) which states that the usual rules of pleading shall apply, has not taken away the Sovereign's prerogative in the matter of pleading and procedure, and that the words therein "so far as applicable" mean "when not inconsistent with the prerogative which the Crown has in such matters." Tobin v. Reg., 14 C.B. (N.S.) 505, at p. 520, 32 L.J.C.P. 216; Tomline v. Reg., 4 Ex. D. 252, 48 L.J. Ex. 453. Sec. 11 of our own Act (R.S.M., 1913, ch. 152) [The Manitoba Petition of Right Act] is in the same terms as sec. 7 of the English Act, except that the latter contains the proviso, that nothing in the statute shall be construed to give to the subject any remedy against the Crown in any case in which he would not have been entitled to such remedy before the passing of the Act. But I do not think it can at all be inferred from the mere omission of this proviso in our enactment, that our Legislature meant to restrict the royal prerogative any more than it is in England.

[37] And see also, The Halifax City Railway Company v. The Queen (1877), 2 Ex. C.R. 433 at 442, in which Sir William B. Richards, the Chief Justice of that court, said:

The suppliants' claim, in effect, is for damages for a trespass committed by the officers of the Government of Canada employed in constructing a portion of the Intercolonial Railway. The suppliants are in this dilemma: If the statutes of the Dominion Parliament authorized the doing of the acts complained of and vested the land (which the suppliants claim was their own or in which they had an interest) in the crown, then their remedy is that pointed out in the statute. If the parties who committed the trespass were not doing acts warranted by the statute and the land was not vested in the crown under the Act, then the parties who did the acts were trespassers, and under a petition of right the crown cannot be proceeded against for trespass.

In Tobin v. The Queen [(1864), 16 C.B.N.S. 310] the matter of redress by petition of right was elaborately discussed by Sir W. Erle, Chief Justice, who delivered an exhaustive judgment, and on this very point decided for the crown. His words are [p. 353]: "On the third ground above mentioned, viz., that a petition of right cannot be maintained to recover unliquidated damages for a trespass, our judgment is also for the crown." He then refers to authorities shewing that the doctrine is based on the fundamental principle that the king can do no wrong. But the person doing the act though authorized by the superior power would be answerable.

In Feather v. The Queen [6 B. & S. 294; 12 L.T.N.S. 114] the same doctrine is affirmed by Chief Justice Cockburn who, in his judgment, says, he sees no reason to dissent from the conclusion arrived at by the Court of Common Pleas. Further on in his judgment, he says [6 B. & S. 295]:

"The maxim that the king can do no wrong applies to personal as well as political wrongs, and not only to wrongs done personally by the sovereign (if such a thing can be supposed to be possible), but to injuries done by a subject by the authority of the sovereign. For, from the maxim that the king cannot do wrong, it follows as a necessary consequence that the king cannot authorize wrong. For to authorize a wrong to be done is to do a wrong, inasmuch as the wrongful act when done becomes in law the act of him who directed or authorized it to be done. It follows that a petition of right which complains of a tortious act done by the crown, or by a public servant by the authority of the crown, discloses no matter of complaint which can entitle the petitioner to redress. As in the eye of the law no such wrong can be done, so in law no right to redress can arise, and the petition therefore which rests on such a foundation falls at once to the ground."

Further on in his judgment, he says [p. 297]:

"But in our opinion no authority is needed to establish that a servant of the crown is responsible in law for a tortious act done to a fellow-subject, though done by the authority of the crown, a position which appears to us to rest on principles which are too well settled to admit of question, and which are alike essential to uphold the dignity of the crown on the one hand and the rights and liberties of the subject on the other."

[38] In 1883, in The Queen v. McLeod, 8 S.C.R. 1, a case of a passenger injured on the Intercolonial Railway, who sought damages for his injuries, Strong J., later C.J., said, at 28:

In the case of the Queen v. McFarlane [7 Can. S.C. Rep. 216], lately decided in this court, I stated my reasons for holding that a petition of right will not lie against the Crown in respect either of tortious injuries or breaches of contract, caused by the negligence of its servants or officers. In other words, that in the case of torts the maxim Respondeat Superior does not apply to the Crown, and in the case of contracts, that they are to be construed as though they contained an exception of the Crown for liability in respect of any wrongful or negligent breach by its servants.

I am unable to distinguish this case on principle from that of the Queen v. McFarlane, and as I adhere to what I then said, I refer to my judgment in that case for the grounds of the conclusion at which I have arrived as to the disposition of the present appeal, which is, that it must be allowed, and the petition of right dismissed.

[39] Fournier J., who was of the opinion that the cause of action sounded in contract and not in tort, did go into at some length the origin and application of the maxim, "The King can do no wrong", and held it had no application to the case of contract.

[40] In 1906, in Quebec North Shore Turnpike Road Trustees ats. The King, 38 S.C.R. 62 at 66, Davies J. remarked:

On the other point argued before us, that the issue of debentures for the purpose of raising money to pay interest on other debentures was ultra vires of the appellants and a breach of trust and that the Crown being a party to that breach of trust could not assert a valid title to the debentures the learned judge was of the opinion that, assuming the responsible advisers of the Crown to have had knowledge or means of knowledge of such an intended diversion by the appellants of the proceeds of the debentures, this could not affect the Crown's title because the issue of the debentures was clearly intra vires and such a breach of trust as that suggested could not be imputed to the Crown.

[Emphasis added.]

[41] From the first edition of Halsbury's Laws of England, vol. 6 (1909) at 374:

549. The law also clothes the person of the Sovereign with absolute perfection; hence it is a maxim of the common law that "the King can do no wrong", and, except by petition of right or traverse of office, and the cases in which actions relating to Crown private estates are provided for by statute, no remedy lies against the Sovereign in person either in civil or criminal matters, since the law supplies no remedy where there is no right. For the prerogative is created for the benefit of the people and cannot be exerted to their prejudice, and the law will presume no injury where it has provided no remedy.

The Sovereign is regarded in law as being incapable of thinking wrong, or meaning to do an improper act. Hence, when royal grants are void as being against law, or invalid for some latent or other defect, the law holds them void on the ground that the Sovereign is "deceived in his grant," rather than that his personal majesty should be lessened by the imputation of intentional wrong.

In pursuance of the same principle of perfection, no laches or negligence can be attributed to the Sovereign at common law, and no delay will bar his right, the maxim of law being that "time does not run against the king" (Nullum tempus occurrit regi). In certain cases, however, the Crown is limited by statute as to the time within which proceedings may be commenced.

[Emphasis added; footnotes omitted.]

[42] And see also, Conseil Des Ports Nationaux v. Langelier, [1969] S.C.R. 60 at 66, in which Martland J., speaking for the court, quoted, without casting any doubt upon it, this passage from the judgment of Viscount Finlay in Johnstone v. Pedlar, [1921] 2 A.C. 262 (H.L.) at 271:

It is the settled law of this country, applicable as much to Ireland as to England, that if a wrongful act has been committed against the person or the property of any person the wrongdoer cannot set up as a defence that the act was done by the command of the Crown. The Crown can do no wrong, and the Sovereign cannot be sued in tort, but the person who did the act is liable in damages, as any private person would be.

[Emphasis added.]

[43] The ratio of B.(K.L.) appears to be that the discoverability concept as it relates to statutes of limitation, applied in some manner to the Crown Proceeding Act and that it was not until the passing of that Act in 1974 that the plaintiff could be said to have "discovered" that he had a cause of action.

[44] In her dissenting judgment, Ryan J.A. said, in a passage with which we agree:

[57] ... Our point of disagreement is whether the reasoning in Nielsen v. Kamloops (City), [1984] 2 S.C.R. 2 (S.C.C.), M.(K.) v. M.(H.), [1992] 3 S.C.R. 6 (S.C.C.), and Peixeiro v. Haberman, [1997] 3 S.C.R. 549 (S.C.C.), can be applied to s. 17 of the Crown Proceeding Act [R.S.B.C. 1979, c. 86]. I am of the view the discoverability rule developed in these cases is restricted in application to the interpretation of statutes of limitation. The discoverability rule is an interpretative tool designed to prevent the injustice which arises when the common law understanding of when the time a cause of action accrues operates to bar an unknowing plaintiff from raising an action. The Crown Proceeding Act is not a statute of limitation. It casts aside Crown immunity. It lets down the barriers, it does not create them. The operation of the Crown Proceeding Act does not create an injustice which would require the application of the discoverability rule.

[45] In our opinion, B.(K.L.) v. British Columbia was wrongly decided and does not govern the disposition of the case at bar.

[46] The Crown failed in B.(K.L.) v. British Columbia to pose the right question. In the case at bar, it has posed the right question.

[47] The true issue is: Upon the true construction of the Crown Proceedings Act, S.B.C. 1974, c. 24, did the Legislature of British Columbia intend to enable, empower, or whatever verb one chooses, a person injured before the 1st August, 1974, by a tort of a servant of the Crown to recover from the Crown, by invoking the doctrine of respondeat superior, redress for the damage thus inflicted?

[48] In other words, did the Legislature intend to abrogate, for wrongs committed by a servant of the Crown before the proclamation of the Act, the commonly understood doctrine, whatever lay at the root of it, that no cause of action, even with a fiat, would lie against the Crown for the wrongs of its servants? The proposition has been put forward that what underlay it was purely a matter of "procedure" – the Sovereign could not be impleaded in Her own courts save with Her own fiat. That was so, but there was more to the whole business than a mere matter of "procedure". In our opinion, there is no warrant in the past for importing into this area of constitutional law modern distinctions between propositions of law which are "procedural" and propositions of law which are "substantive". In the relationship of the Sovereign to the subject, all was inextricably intertwined.

[49] We see nothing in this Act upon which one could possibly answer the question which has been posed "yes".

[50] Indeed, in ss. 15 and 16, there is an express indication to the contrary.

[51] At the time this Act was passed, no suggestion was heard at the bar that a person who had been injured by the tort of a servant of the Crown, whether that tort be negligence, trespass, false imprisonment, battery, nuisance, defamation or malfeasance in public office committed before the date of proclamation, that is to say a person whose cause of action against the servant arose before 1st August, 1974, could then sue the Crown, invoking the doctrine of respondeat superior, subject only to the application of the Statute of Limitations, R.S.B.C. 1960, c. 370, which, of course, is the statute of 21 Jac. 1, c. 16, and which, by virtue of s. 8, exempted from its basic limitations actions by infants and the insane. Thus, in theory, if the answer given by the learned judge below on the first point of law is correct, an infant injured in 1955 at the age of 1 by a tort of a Crown servant could sue the Crown, depending upon the cause of action, until 1979 or 1981.

[52] That proposition would have astonished the legal profession.

[53] It has been suggested that the difference between the British Columbia Act and the Ontario Act leads to an inference unfavourable to the Crown's submission.

[54] In our opinion, while it is correct in construing a statute of the Legislature of British Columbia to have regard to other statutes of the Legislature of British Columbia, it is not, we think, appropriate in this case to draw any inference from differences between the statutes of this province and those of any other jurisdiction. And see on this point Canadian Dominion Engineering Co., Ltd. v. The King in the Right of the Province of Manitoba, quoted supra at para. 35.

[55] In our opinion, there is simply nothing in this statute to lead to the conclusion that the Legislature intended that the Crown should be liable under the doctrine of respondeat superior for causes of action which had arisen against its servants before 1st August, 1974.

[56] It follows from this construction of the statute that we would allow the cross appeal by the Crown and substitute for paragraph 1 of the order pronounced below, the following:

1. The point of law raised by the defendants pursuant to Rule 34 of the Rules of Court is answered that the Crown cannot be held liable for a tort alleged to have been committed by a servant or agent of the Crown before the Crown Proceedings Act came into force on 1st August, 1974.

[57] It further follows that this action must stand dismissed in all respects.

“The Honourable Chief Justice Finch”

“The Honourable Madam Justice Southin”

“The Honourable Madam Justice Prowse”

“The Honourable Madam Justice Saunders”

“The Honourable Mr. Justice Thackray”

Corrigendum: 18 October 2005

In the second sentence of paragraph 27 of the Reasons of the Court released 6^th October, 2005, the reference to 1^st April, 1974 is corrected to read “1^st August, 1974”

Citation:	*Arishenkoff v. British Columbia,*
	2005 BCCA 481