2008 BCCA 171 Bagnell v. Vancouver Police Board

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*Bagnell v. Vancouver Police Board,*
	2008 BCCA 171

Date: 20080428

Docket: CA034632

Between:

Janna Lavaughan Bagnell, Robert William Bagnell, and Patricia Louise Gillman (Personal Representative of Robert Wayne Bagnell, Deceased)

Respondents

(Plaintiffs)

And

Vancouver Police Board

Appellant

(Defendant)

Before:	The Honourable Madam Justice Prowse
	The Honourable Mr. Justice Hall
	The Honourable Mr. Justice Frankel

G.K. Macintosh, Q.C.	Counsel for the Appellant
A. C. Ward	Counsel for the Respondents
Place and Date of Hearing:	Vancouver, British Columbia
7 February 2008
Place and Date of Judgment:	Vancouver, British Columbia
28 April 2008

Written Reasons by:

The Honourable Mr. Justice Hall

Concurred in by:

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Frankel

Reasons for Judgment of the Honourable Mr. Justice Hall:

[1] The appellant, the Vancouver Police Board (the “Board”), appeals from a November 8, 2006, order of Wedge J. dismissing the Board’s application to have the claim against it struck out on the basis it discloses no reasonable claim.

[2] On June 23, 2004, Robert Bagnell died in police custody. The respondents, the parents and sister of Mr. Bagnell, have brought an action under the Family Compensation Act, R.S.B.C. 1996, c. 126, claiming Mr. Bagnell died as a result of the use of a taser by police officers in the Vancouver Police Department. The respondents have sued the individual police officers, the Chief Constable, the City of Vancouver, the Board, as well as the manufacturer and the Canadian distributor of tasers.

[3] The claim against the Board asserts that the Board was negligent in supplying police officers with tasers and by failing to ensure the tasers were independently tested and properly maintained.

[4] The Board brought an application under Rule 19(24)(a) of the Rules of Court for an order dismissing the action on the basis it discloses no reasonable claim. The Board argues that liability does not and cannot arise as no private law duty of care is owed to the respondents by the Board. The respondents argue that a private law duty of care is owed in the present case.

[5] The chambers judge dismissed the Board’s application, finding that it was not “plain and obvious” that the claim against the Board could not succeed. The decision is indexed as 2006 BCSC 1857.

[6] Rule 19(24)(a) of the Rules of Court states:

At any stage of a proceeding the court may order to be struck out or amended the whole or any part of [a] … pleading … on the ground that

(a) it discloses no reasonable claim […]

[7] The parties are in agreement that the test to be applied is a rigorous one and that the action should be struck only if it is plain and obvious the claim cannot succeed. The Supreme Court of Canada said the following in the oft-quoted case of Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980, 74 D.L.R. (4th) 321:

[…] [T]he test in Canada governing the application of provisions like Rule 19(24)(a) ... is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) ... should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).

[8] The narrow issue before the chambers judge was whether it was “plain and obvious” that no private law duty of care is owed by the Board such that the action against it is certain to fail. She answered that question in the negative.

[9] Wedge J. set out the relevant portions of the statement of claim at paras. 6-7:

[6] The essence of the plaintiffs' claim against the Police Board is that Mr. Bagnell died as a result of the Police Board's negligence or gross negligence. The particulars of the Board's negligence are contained in paragraph 28 of the statement of claim, and are as follows:

(a) failing to instruct, train, supervise or control individual police defendants;

(b) supplying the individual police defendants with tasers; and

[7] Also relevant to this application are the facts alleged in other paragraphs of the statement of claim. They are as follows:

· That the individual police officers involved in Mr. Bagnell's death were employed, trained and supervised by the Police Board (para. 17);

· That the police board purchased the tasers and supplied them to the individual police officers (paras. 23 & 24); and

· That although the Police Board knew many people have died after being shot by tasers, the Police Board continued to supply them to its officers for use as a non‑lethal means of intervention (para. 33).

Counsel for the respondents suggested in submissions before this Court that he was particularly relying on the allegations set out in paras. 6(b) and (c) supra.

[10] The test for determining the existence of a private law duty of care was set out by the Supreme Court of Canada in Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79. This test involves two questions: (1) Does the relationship between the Board and the respondents disclose sufficient foreseeability and proximity to establish a prima facie duty of care; and (2) If so, are there any residual policy considerations which ought to negate or limit that duty of care?

[11] The focus of the inquiry at the first stage is to determine whether there is a relationship between the Board and the respondents that gives rise to a legal duty of care. As set out above, this first question includes two necessary components: foreseeability and proximity. The foreseeability inquiry asks whether it was reasonably foreseeable that the actions of the Board would cause harm to the respondents. The Board concedes that the harm complained of in the present case could be a reasonably foreseeable consequence of the alleged breach. The next issue then is the question of proximity. This inquiry is focused on whether the relationship between the respondents and the Board was one that could give rise to a legal duty of care. In cases where there is an applicable statute, the factors giving rise to proximity must be grounded in the statute: Cooper at para. 43. The Board submits that there is insufficient proximity between it and the respondents to establish a prima facie duty of care. It submits that, in the present case, the Police Act, R.S.B.C. 1996, c. 367 (the "Act"), which is the statute creating and governing the Board, precludes a finding that the Board owes a duty of care to individual claimants.

[12] The core issue in this case is the interpretation of the Act. Does the Act, properly construed, indicate that a claim such as the one advanced here is not one that should be entertained by a court? The appellant submits that the legislature manifested an intention in this legislation to not impose a legal duty toward claimants in a situation like the instant case. Counsel for the Board placed considerable reliance upon the reasoning of Kirkpatrick J. (as she then was) in Ribeiro v. Vancouver (City of) et al, 2005 BCSC 395, 41 B.C.L.R. (4th) 67. He noted particularly the comment of Kirkpatrick J. at para. 62:

The respondents advanced a somewhat different perspective on the Riberio decision, noting that what was at issue in that case was an assertion that the Police Board had failed in an alleged duty to provide for and initiate a general policy concerning police interactions with mentally ill people. They suggest that section 26(3)(b) of the Act, a section not specifically considered by Kirkpatrick J. in Ribeiro, should militate in favour of a finding of potential liability here. Section 26(3)(b) is as follows:

26 […]

(3) Subject to a collective agreement as defined in the Labour Relations Code, the chief constable and every constable and employee of a municipal police department must be

[…]

(b) provided with the accommodation, equipment and supplies the municipal police board considers necessary for his or her duties and functions,[…]

[13] Counsel for the Board also referred in argument to Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69, but recognized that the legislative regime applicable to that case differed from the Act. In Odhavji, a man was shot and killed by municipal police officers in Toronto. The victim’s family brought an action in negligence against the Toronto Police Services Board alleging failure of the police officers to cooperate with the investigation into the death. The chambers judge said the following about Odhavji:

[22] It is significant to note that the plaintiffs in Odhavji did not allege the Board was under a private law obligation to ensure that its police officers cooperated with the investigation into the death of the deceased. They alleged that the Board had a private law duty of care to ensure that police officers, as a matter of general policy, cooperated with investigations into their conduct. The Court concluded there was a lack of a close causal connection between the alleged misconduct and the harm.

[23] It is also significant to note that the Court found the police chief had the statutory authority to supervise the day‑to‑day conduct of police officers to the exclusion of the Board. The Court noted (at para. 6) a specific provision of the Police Services Act, R.S.O. 1990, c. P.15, which precluded the Board from directing the police chief in operational matters. The provision, s. 34(4), provided as follows:

The board shall not direct the chief of police with respect to specific operational decisions or with respect to the day‑to‑day operation of the police force.

[24] According to the Court, this lack of involvement by the Board in the operational matters of its police force substantially weakened the nexus between the Board and members of the public injured as a consequence of police misconduct (Odhavji at para. 64).

[Emphasis in original.]

[14] Wedge J. determined that the Odhavji decision did not support the argument that the Act does not create sufficient proximity between the respondents and the Board to create a private law duty of care. She noted that the legislative scheme in this province is quite distinct from the one at issue in Odhavji:

[40] […] The scheme of our legislation is quite different from the legislative scheme governing the Ontario Police Services Board under consideration in the Odhavji decision. In Ontario, the Police Services Board is expressly prohibited from making operational decisions concerning the police force. Only the police chief is empowered to make such decisions. Those specific legislative provisions played a significant role in the conclusion reached by the Supreme Court of Canada that while there was sufficient proximity between the plaintiffs and the police chief to create a private law duty of care, there was not sufficient proximity between the plaintiffs and the Police Services Board.

[15] I tend to agree with the conclusion of Wedge J. that the Odhavji decision is not dispositive here because of legislative differences.

[16] In Ribeiro it was determined by Kirkpatrick J. that the Board did not owe a private law duty of care to the plaintiff who was injured in an interaction with Vancouver police officers. The plaintiff, Mr. Ribeiro, had been involved in a confrontation with officers and suffered injuries as a result. The plaintiff, who suffered from mental illness, alleged that under the Police Act the Board had a duty to ensure that there were proper policies in place to effectively and safely deal with mentally ill citizens and the Board had breached that duty. Kirkpatrick J. concluded that there was no such duty owed to the plaintiff. She said this in her reasons:

[62] […] [T]he duties owed by the Board under the statutory scheme are owed to the general public as a whole, not to a particular class of persons, and are inherently public and political in nature. The statute imposes an obligation to provide policing services and it would not be appropriate to 'read in' other specific duties. I therefore do not accept that the situation that the Supreme Court suggested might arise in Odhavji arises in the case at bar so as to impose a positive private law obligation on the Board. In effect, Mr. Ribeiro is attempting to litigate a social policy issue by means of a tort claim. The law is clear that the issues raised by Mr. Ribeiro in his independent tort claims against the City and the Board are more appropriately dealt with in the political and legislative context, rather than in the courts.

[63] In these circumstances, I conclude that the Board, whose primary function is to determine the policies of the police department and govern the police department, is not in a relationship of sufficient proximity with Mr. Ribeiro to justify imposing a prima facie duty of care. […]

[17] The Board says that the analysis in Ribeiro supports the proposition that under the Act the Board’s role should be seen as limited to establishing priorities, goals and objectives – obligations that concern the realm of policy. The chambers judge did not find that the reasoning in Ribeiro necessarily answered the issue thrown up for consideration in the present case. She said this in the course of her reasons:

[35] Consideration must be given to the factual context in which both the Odhavji and the Ribeiro decisions were decided. In each case the plaintiff alleged a failure by the Police Board to initiate certain policies of general application to its police force. In Odhavji the allegation was that the Board breached a duty of care to ensure that police officers as a matter of general practice cooperate with internal investigations. In Ribeiro the plaintiff alleged a failure by the Board to initiate a general policy concerning police interactions with the mentally ill. Both cases involved, in the words of Kirkpatrick J., classic policy functions of the Police Board.

[36] In the present case, the Bagnell family is not alleging the Police Board failed to generate a policy of general application that could have prevented Mr. Bagnell's death. They allege that the Police Board, which employs the members of the Vancouver Police Department, including the Chief Constable, made a decision to purchase -- and did purchase -- tasers. They allege the Police Board supplied those tasers to its employees for the purpose of non‑lethal policing intervention knowing that tasers had already caused the death of a significant number of people.

[37] Those allegations must be accepted as true for the purposes of this application.

[38] The decisions taken by the Police Board to purchase tasers and supply them to its employees for non‑lethal intervention were not policy decisions, say the plaintiffs. They are not decisions the Chief Constable is empowered to make under the Police Act. They are operational decisions that could only have been made by the Police Board, which oversees and directs the Chief Constable in his supervision of the police officers.

[39] In Ribeiro, Kirkpatrick J. emphasized the prerogative of the Police Board to establish policy because in that case the plaintiff alleged a positive duty on the part of the Board to create a general policy concerning mentally ill persons. I do not read Ribeiro as saying the only role of the Police Board is to initiate policy; rather, it is only the Police Board that has the right to fulfil that role under the Police Act.

[…]

[48] In the context of the present case, it is particularly important to note that the Police Act requires the Police Board, and not the Chief Constable, to provide all members of the police force, including the Chief Constable, with the equipment the Police Board considers necessary for the officers to carry out their duties and functions (at s. 26(3)(b), reproduced above). It rests with the Police Board, at least on the face of the statute, to decide what equipment its police officers require to carry out their duties. A decision as to the nature of the equipment police officers will use in the discharge of their duties is, at least arguably, an operational one. The actual purchase of the equipment is also, arguably, operational in nature. However, it must be left to the trial judge to determine, after hearing all of the evidence, the precise role the Police Board played in the purchase of the tasers and the supplying of the weapons to the police force.

[Emphasis in original.]

[18] The Board submits that the Act was correctly analyzed in Ribeiro and that Wedge J. erred in her analysis of that case and of the Act itself. The respondents, however, submit that, as noted by the chambers judge, the present case is distinct from the situation in Ribeiro and, as such, was properly distinguished in this regard. They argue that the analysis of the chambers judge was correct and ought to be sustained.

[19] Before this Court, counsel for the Board asserted that too much emphasis had been placed in the chambers court on the policy-operational distinction. He submitted that it is the terms of the Act and, more specifically, what the Act appears to contemplate regarding the Board’s relationship vis-à-vis individual claimants, that should be seen as central to this case. The Board argues that the legislature never intended the Board to face possible liability for tort claims of private citizens arising from police conduct. The Board submits that the Act should be construed as endowing the Board with policy functions and precluding any finding of proximity concerning individual claimants such as the present claimants.

[20] Section 23(1) of the Act provides for the establishment of municipal police boards:

23 (1) Subject to the minister's approval, the council of a municipality required to provide policing and law enforcement under section 15 may provide policing and law enforcement by means of a municipal police department governed by a municipal police board […]

[21] The duties of the Board are set out in section 26:

26 […]

(2) The duties and functions of a municipal police department are, under the direction of the municipal police board, to

(a) enforce, in the municipality, municipal bylaws, the criminal law and the laws of British Columbia,

(b) generally maintain law and order in the municipality, and

[…]

(4) In consultation with the chief constable, the municipal police board must determine the priorities, goals and objectives of the municipal police department.

[22] Section 28(1)(a) provides that the Board must make rules respecting “the standards, guidelines and policies for the administration of the municipal police department".

[23] Sections 20(1) and (2) of the Act set out the responsibility of the municipality and the Board for torts committed by police:

20 (1) Subject to an agreement under section 18 (1) or 23 (2),

(a) a municipality is jointly and severally liable for a tort that is committed by any of its municipal constables, special municipal constables, designated constables, enforcement officers, bylaw enforcement officers or employees of its municipal police board, if any, if the tort is committed in the performance of that person's duties, and

[…]

(2) If it is alleged or established that any municipal constable, special municipal constable, designated constable, enforcement officer, bylaw enforcement officer or employee referred to in subsection (1) has committed a tort in the performance of his or her duties, the respective board and any members of that board are not liable for the claim.

[24] Counsel for the Board argues that the above section is indicative of a legislative intention to insulate the Board from liability for claims arising out of police use of force. It submits that it is the City of Vancouver, not the Board, who is to be jointly and severally liable for torts committed by police officers. It is further argued that as the respondents do not lack for a remedy, it is unnecessary to seek to involve the Board in this litigation. The Board submits that the general tenor of the Act does not contemplate liability on the part of the Board for alleged tortious activity of police officers. The respondents riposte to this that the liability urged here is a direct one, not one in the nature of respondeat superior.

[25] The Board notes as well that section 34 of the Act expressly provides that the Chief Constable, not the Board, is required to supervise, command and direct the Police Department. Section 34 provides as follows:

34 (1) The chief constable of a municipal police department has, under the direction of the municipal police board, general supervision and command over the municipal police department and must perform the other functions and duties assigned to the chief constable under the regulations or under any Act.

(2) The municipal police department, under the chief constable's direction, must perform the duties and functions respecting the preservation of peace, the prevention of crime and offences against the law and the administration of justice assigned to it or generally to peace officers by the chief constable, under the regulations or under any Act.

[26] The respondents maintain that the policy-operational distinction is important, and submit that the fact the Board has under the applicable legislative provision a statutory duty to provide equipment to the police distinguishes this case from Ribeiro. They submit there is an operational aspect to this case that was not engaged in Ribeiro as section 26(3)(b) was not at issue in that case.

[27] Section 26(3)(b) of the Act set forth supra mandates that police officers are to be provided with “equipment and supplies the municipal board considers necessary for his or her duties and functions". The respondents argue that a decision as to the nature of the equipment police officers require should be found to be an operational one, and that this is a decision for which the Board is made responsible under the Act. Counsel for the respondents concedes that there may be very few situations where a municipal board could be found to owe a duty of care to a individual claimant, but he submits that section 26(3)(b), combined with the product liability nature of this case, operates to create such a duty in the circumstances of this case. He submits Ribeiro does not govern what should be the result here.

[28] As mentioned in para. 11 supra, where there is a governing statute, the factors giving rise to a finding of possible proximity must be grounded in the provisions of the statute. The respondents allege that the Board had a duty not to supply tasers to police officers for the purpose of non-lethal intervention because it knew or ought to have known that tasers had previously caused the death of a significant number of individuals. The liability sought to be imposed on the Board flows out of the decision to provide what are alleged to be unsafe weapons to the police force.

[29] As noted by the chambers judge, the factual context of this case presents a quite unusual circumstance. While the primary role of the Board, as noted in Ribeiro, is to provide governance and to establish general policies for the police department, and thus, in most instances, no private law duty of care should be found to be applicable, section 26(3)(b) of the Act appears to confer a duty upon the Board that is arguably operational in nature. This suffices in the present case to allow the respondents to resist this application. In my opinion, the provisions of section 26(3)(b) of the Act applied to what is pleaded here could be found to support the necessary relationship of proximity alleged.

[30] This brings me to the second stage of the Cooper test. This stage requires a court to consider whether there are residual policy reasons for declining to recognize the duty of care alleged in the present case. In Cooper, the Supreme Court of Canada said this regarding the second stage:

[37] […] [R]esidual policy considerations fall to be considered here. These are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized? […]

[38] It is at this second stage of the analysis that the distinction between government policy and execution of policy falls to be considered. It is established that government actors are not liable in negligence for policy decisions, but only operational decisions. The basis of this immunity is that policy is the prerogative of the elected Legislature. It is inappropriate for courts to impose liability for the consequences of a particular policy decision. On the other hand, a government actor may be liable in negligence for the manner in which it executes or carries out the policy. […]

[31] While a trial judge may ultimately conclude that the decision as to the nature of equipment to be supplied to police officers is not an operational one, it is not presently plain and obvious that the pleaded assertion is bound to fail. The Board suggests that any duty ought to be negated on the basis that the Act already provides a remedy. As mentioned supra, the City of Vancouver is vicariously liable for torts committed by police officers (section 20(1)). However, the respondents do not appear to be seeking to establish a case of vicarious liability with respect to the Board. Rather, the respondents allege that the Board was negligent in supplying these weapons to police officers. The question of operational versus policy remains to be decided on what facts are established in evidence. It would not be appropriate to resolve that issue at the present stage of proceedings.

[32] While the claim against the Board may not ultimately succeed, it cannot be presently held that it is certain to fail. I consider it ought to be left to the trial forum to determine whether the Board could be held liable. I would dismiss the appeal.

“The Honourable Mr. Justice Hall”

I agree:

“The Honourable Madam Justice Prowse”

I agree:

“The Honourable Mr. Justice Frankel”