IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120222

Docket: M48385

Registry:
Nanaimo

Between:

Steven Aitken

Plaintiff

And

William Jeffrey
Bethell, Deceased, RCMP Constable Joe Furtmann, RCMP Constable Turner (RCMP
Regimental Number 47786), Theresa Braid, Minister of Public Safety and
Solicitor General

Defendants

Before:
The Honourable Mr. Justice D.A. Halfyard

Reasons for Judgment

The applications

[1]            
There are two applications before the court. The first is an application
by the defendants RCMP Constable Joe Furtmann, RCMP Constable Turner and
Minister of Public Safety and Solicitor General (“the applicants”). This
application is brought pursuant to civil Rule 9-7, and was filed on January 31,
2012. The applicants seek the following orders:

a)    An order
dismissing the action as against the defendant Minister of Public Safety and
Solicitor General (“the Minister”), on the ground that the action is barred by
s. 10 of the Workers Compensation Act; and

b)    An order
dismissing the action as against the defendants Constable Furtmann and Constable
Turner, on the ground that the action against them personally is barred by
s. 21 of the Police Act.

[2]            
The plaintiff consents to the granting of the second order being sought
by the applicants, and the defendant William Bethell takes no position as to
the granting of that order. Both the plaintiff and the defendant William Bethell
oppose the granting of the first order sought, on several grounds.

[3]            
The second application is made by the plaintiff and it was filed on
February 1, 2012. In that application, the plaintiff seeks the following
orders:

a)    An order
amending the style of cause to delete the personal defendants, RCMP Constable
Joe Furtmann, RCMP Constable Turner (RCMP Regimental Number 47786) from the
style of cause.

b)    An order to
delete the allegation of gross negligence against the defendant Constable Joe
Furtmann.

c)     An order
to delete any and all allegations of negligence against the defendant RCMP
Constable Turner (RCMP Regimental Number 47786).

d)    An order that
the style of cause and deletions requested be made without the necessity of
filing formal amended pleadings.

e)    An order
striking out paragraph 33 of the amended statement of defence of RCMP Constable
Joe Furtmann, RCMP Constable Turner (RCMP Regimental Number 47786) and the
Minister of Public Safety and Solicitor General.

[4]            
I suggested that the plaintiff’s application with respect to the first
three orders sought should proceed first, because it appeared to me that there
was no dispute on those issues and the granting of those orders would simplify
Mr. Kwan’s application to some extent. Mr. Kwan objected to that suggested
sequence on several grounds. Counsel argued that the plaintiff’s application
would be unnecessary if the Minister’s application was successful. It was also
said that such a sequence could have disadvantageous cost consequences for his
clients, and would allow the plaintiff to ignore the Rules of Court. In
the end, I directed that Mr. Kwan’s application would proceed first.

The application of the defendants Furtmann, Turner and the Minister

The procedural issue

[5]            
These defendants ask for a summary trial and, if that is granted, they
seek final judgment dismissing the plaintiff’s claims against them.

[6]            
I need not review the pleadings and the evidence in order to decide
whether the issues are suitable for determination by way of summary trial. No
objection for summary trial procedure was made by the other parties. There is
no conflicting evidence on any essential issue. The court is not being asked to
temporarily assume the truth of any material fact. If the application is
successful, much trial time and expense will likely be avoided.

[7]            
I conclude that I will be able to find the facts necessary to decide the
issues of fact and law, and that it would not be unjust to proceed by way of
summary trial.

The action

[8]            
The plaintiff Steven Aitken alleges that he was injured in a motor
vehicle accident which occurred on November 8, 2004, at Nanaimo. He says that
the accident was caused by the negligent operation of two motor vehicles, one
being driven by the defendant William Bethell and one being driven by the
defendant RCMP Constable Joe Furtmann.

The accident

[9]            
I will outline the facts relating to the accident, in summary form,
which facts were not really in dispute.

[10]        
Shortly before noon on November 8, 2004, Sarah La Von Bethell telephoned
the Nanaimo Detachment of the Royal Canadian Mounted Police and reported, in
substance, that her husband (the defendant William Bethell) had forcibly
confined her and assaulted her at their home in Nanaimo; that Mr. Bethell was
going to the Nanaimo Christian School to abduct their daughter Jessica with the
intent to harm or kill her; and that Mr. Bethell was driving her (Mrs.
Bethell’s) van.

[11]        
Constable Furtmann was dispatched to go to the school and he drove there
in a marked police car. He saw Mrs. Bethell’s van parked in the school parking
lot. He saw a man throw a small child into the van, and saw the man jump into
the driver’s seat. Constable Furtmann tried to prevent the van from driving
away, but the driver of the van rammed into a vehicle parked ahead of it,
forced that vehicle out of the way, and drove out of the school parking lot at
a high rate of speed.

[12]        
Constable Furtmann followed the van, with his dome lights and siren
activated, but the van did not stop. It continued travelling west on Jinglepot
Road at high speed. Constable Furtmann pursued the van, keeping a distance of
about 300 metres behind it. As the Bethell vehicle approached the intersection
of East Wellington Road, Constable Furtmann’s view of the van was partially
obstructed as it went over the crest of a hill, but he did see it move to the
left, and then immediately saw dust and steam. Constable Furtmann then saw that
a collision had occurred between the van and an oncoming vehicle, and that at
least one of those vehicles had collided with a truck that had been parked at
the side of the road.

[13]        
The plaintiff was sitting in the parked truck, having lunch, when the
collision occurred. He had been doing landscaping work at a nearby property,
and had stopped work to have lunch, in his employer’s truck, along with a
co-worker.

[14]        
The plaintiff sustained serious injuries as the result of the collision.
William Bethell was killed. The driver of the oncoming vehicle was seriously
injured. Jessica Bethell was injured.

[15]        
It appears that the police pursuit of the van before the collision
occurred was fairly short in distance and in time. No direct evidence was given
about time and distance on this application, but I infer that the time was not
more than a few minutes, and the distance covered was not more than a few
kilometers.

The claims of the plaintiff

[16]        
In his statement of claim filed October 10, 2006, the plaintiff alleged
negligence against the defendant William Bethell, gross negligence against the
defendant Constable Furtmann, negligence against the defendants Theresa Braid
and Constable Turner and negligence against the Minister. The plaintiff also
alleged that the Minister was jointly and severally liable for the negligence
of the police officers Furtmann and Turner, by operation of s. 11 of the Police
Act.

[17]        
The negligence alleged against the defendants Braid and Turner included
the failure to obtain, and pass on to Constable Furtmann, sufficient
information relating to the defendant William Bethell, or complete information
about the threats he had made.

[18]        
The defendant Theresa Braid had been working as the RCMP dispatcher at
the time of the accident. On June 23, 2008, the Workers’ Compensation Appeal
Tribunal (“WCAT”) determined, among other things, that both the plaintiff and
the defendant Theresa Braid were workers within the meaning of Part 1 of the
Workers Compensation Act. That decision led to a consent order, whereby the
action of the plaintiff as against Theresa Braid was dismissed, on September
25, 2008.

[19]        
On October 3, 2008, an amended statement of defence was filed on behalf
of the defendants Furtmann, Turner and the Minister. In addition to a denial of
negligence, it had previously been pleaded on behalf of the defendants Furtmann
and Turner that the action against them personally was barred by s. 21(2) of
the Police Act. In the new paragraph 33, the defendants Furtmann, Turner
and the Minister all pleaded that the plaintiff’s action as against all of them
was barred by s. 10 of the Workers Compensation Act (“the Act”).

[20]        
In the present application, s. 10 of the Act was only raised as a bar to
the action against the Minister.

[21]        
As mentioned, the plaintiff has filed an application in which he seeks,
among other things, to delete the allegation of gross negligence against
Constable Furtmann, to delete the allegation of negligence against Constable
Turner and to remove Constable Furtmann and Constable Turner from the style of
cause. In making this application, the plaintiff is effectively conceding that
the action against Constable Turner cannot succeed and should be dismissed, and
that gross negligence cannot be proved against Constable Furtmann. The
plaintiff is also accepting that Constable Furtmann is protected by s. 21(2) of
the Police Act and cannot be personally liable for any negligence that
might be proved against him.

[22]        
At the present time, the plaintiff intends to pursue a judgment for
liability as against William Bethell, deceased, and the Minister. There are two
claims against the Minister. The first is dependent on proof of negligence
against Constable Furtmann in his pursuit of the Bethell vehicle, which, if
established, would make the Minister “vicariously liable” for his negligence.
The second claim against the Minister is a claim of direct negligence which is
pleaded in paragraph 19 of the statement of claim as follows:

Particulars of negligence of
Minister:

a)     Failing to
take such measures as were reasonably necessary to ensure safe travel by the
public of the local roadways, and particularly while RCMP constables [are] in
high speed pursuit of dangerous motorists;

b)     Failing to
provide adequate policies regarding high speed pursuits by RCMP constables;

c)     Failing to
devise and implement practices to ensure the safety of motorists during high
speed pursuits;

d)     Failing to
ensure prompt communication of high speed pursuits and co-ordination with other
law enforcement personnel;

e)     Failing to
identify the significant hazard posed by high speed pursuits, the heavy volume
of traffic in residential areas, the extended duration of the pursuit and the
failure to provide measures to discontinue high speed pursuits when dangers and
risks become intolerable;

f)      
Such further particulars as counsel may advise.

The proceedings before the Workers’ Compensation Appeal Tribunal

[23]        
On October 6, 2006, the plaintiff applied under s. 257 of the Act, for
determination of the status of himself and other parties to the action, by WCAT.
In its final decision (the panel consisted of Herb Morton, Vice Chair) made on
June 23, 2008, WCAT issued a certificate which contained the following
decisions:

1)    The plaintiff,
Steven Aitken, was a worker within the meaning of Part 1 of the Workers
Compensation Act.

2)    The injuries
suffered by the plaintiff, Steven Aitken, arose out of and in the course of his
employment within the scope of Part 1 of the Workers Compensation Act.

3)    Sodbuster
Landscaping Ltd. was an employer engaged in an industry within the meaning of
Part 1 of the Workers Compensation Act.

4)    The defendant,
Theresa Braid, was a worker within the meaning of Part 1 of the Worker’s
Compensation Act.

5)    Any action or
conduct of the defendant, Theresa Braid, which caused the alleged breach of
duty of care, arose out of and in the course of her employment within the scope
of Part 1 of the Workers Compensation Act.

6)    The City of
Nanaimo was an employer engaged in an industry within the meaning of Part 1 of
the Workers Compensation Act.

7)    The defendant,
Minister of Public Safety and Solicitor General, was not an employer engaged in
an industry within the meaning of Part 1 of the Workers Compensation Act.

8)    The government
of British Columbia was an employer engaged in an industry within the meaning
of Part 1 of the Workers Compensation Act.

9)    Any action or
conduct of the Government of British Columbia, or its servant or agent, which
caused the alleged breach of duty of care, arose out of and in the course of
employment within the scope of Part 1 of the Workers Compensation Act.

[24]        
In the proceedings before WCAT (which were conducted by way of written
submissions) counsel for the Minister made a lengthy argument intended to persuade
WCAT that the Minister should be found to be an employer engaged in an industry
within the meaning of Part 1 of the Act. Counsel for the plaintiff responded to
these arguments. Counsel’s arguments and Mr. Morton’s reasoning and decision in
respect of them, are set out in pages 18 to 28 of the 29-page decision.

[25]        
Mr. Morton found that the Minister was not a “worker” or an “employer”
within the meaning of Part 1 of the Act (see page 20 and page 28 of the
decision). Counsel for the Minister made an extensive argument based on s.
11(1) of the Police Act to the effect that the Minister was liable on
behalf of the government for torts committed by provincial
constables in the performance of their duties, and that if the government was
an employer, then the Minister should be accorded the same status by reason of
being the designate, representative or agent of the government for the purposes
of s. 11(1) of the Police Act. It was argued, in effect, that the
government, and not the Minister, was liable to pay any damages that might be
awarded against negligent police officers. These arguments were countered by
counsel for the plaintiff.

[26]        
Mr. Morton stated his conclusions with respect to these arguments of the
Minister at pages 27 and 28 of his decision in these words:

Counsel for the Minister does not argue that the Minister is
an employer (or a worker), in his own right. Rather, the argument is that the
Government is an employer. Accordingly, the Minister should similarly be
accorded the status of an employer, so that the Minister can claim the
protection of the section 10 bar to a legal action. It seems to me that the
submissions of counsel for the Minister are concerned with the effect of the
WCAT certification for the legal action, rather than being restricted to
questions as to the status of the parties. For the reasons set out above in WCAT
Decision #207-02502 and Appeal Division Decision #97-1701, I
consider that WCAT must be mindful of the limits of its jurisdiction under the
Act, and to refrain from addressing questions which may be reserved to the
courts.

On the question as to whether the Minister is an employer in
his or her own right, my determination is in the negative. Evidence has not been
provided to show that the Minister is an employer, as that term is defined in
law and policy. For similar reasons to those provided in WCAT Decision
#2008-01353, I find that the Minister was not an employer within the
meaning of Part 1 of the Act.

. . .

I would comment, by way of obiter
dicta which is not necessary to my decision, that it appears that the
thrust of the argument by counsel for the Minister is that the Minister should
be equated with the Government. It appears to me that such an argument is more
properly considered by the court than by WCAT, given the limitations on WCAT’s
jurisdiction. I appreciate that an ambiguity arises in relation to the finding
that any action or conduct of the Government, or its servant or agent, which
caused the alleged breach of duty of care, arose out of and in the course of
employment within the scope of Part 1 of the Act. Obviously, this finding can
only refer to action or conduct of the employer, or a worker, in connection
with a relationship of employment within the scope of Part 1 of the Act, and the
Minister is neither a worker nor an employer in his own right. In relation to
the question as to the role of the Minister as a putative agent of the
Government, this would appear to get back to the question as to whether the
Minister should be equated with the Government for the purpose of considering
the effect of the section 10 bar to a legal action. It seems to me that this
issue is one which would be within the jurisdiction of the court to address.

The claims against the RCMP officers

[27]        
With respect to the claim of the applicants for an order dismissing the
action against Constable Furtmann and Constable Turner personally, there is no
opposition. As to Constable Furtmann, his counsel submits that s. 21(2) of the Police
Act is a good defence, because he is deemed to be a Provincial Constable
under the Police Act, and because the evidence does not establish gross
negligence on his part so as to deprive him of the defence under s. 21(2).

[28]        
The evidence of Constable Josef Furtmann is given in his affidavit sworn
February 13, 2009. In his affidavit he describes what actions he took and why
he took them. His evidence is not challenged and the plaintiff has effectively
conceded that the evidence could not support a finding of gross negligence on
the part of Constable Furtmann.

[29]        
One of the accepted tests for gross negligence is whether the conduct in
question amounts to “a very marked departure from the standards by which
responsible and competent people in charge of motor cars habitually govern
themselves.” See Ward v. Vancouver (City), 2007 BCSC 3 at paragraph 101.

[30]        
I am satisfied that the evidence cannot support the inference that the
conduct of Constable Furtmann amounted to gross negligence. That means that he
is entitled to the protection given by s. 21(2) of the Police Act, and
the action as against him must be dismissed. Also, the allegation of gross
negligence will be struck from the statement of claim.

[31]        
As to Constable Turner, only simple negligence is alleged against him.
It is conceded that he, along with Constable Furtmann is deemed to be a “police
constable” within s. 11(1) of the Police Act. As a consequence, the
action as against Constable Turner personally is also barred by s. 21(2) of the
Police Act and must be dismissed for that reason.

[32]        
Counsel submits on behalf of Constable Turner that there is a second
reason why the action should be dismissed as against him. Counsel relies on the
affidavit of William Turner (now a Corporal) sworn December 5, 2008.

[33]        
The evidence of Corporal Turner establishes that he had no involvement
in or connection with the events leading up to the accident on November 8,
2004. That evidence is not challenged, and I accept it. There is truly no
evidence of negligence on his part, and the claim against the Minister based on
Constable Turner’s alleged negligent conduct is bound to fail. That claim is
dismissed.

The claims against the Minister

Position of the applicants

[34]        
As to the plaintiff’s claims against the Minister, Mr. Kwan submits that
both the claim based on vicarious liability and the claim based on direct
negligence are barred by the operation of s. 10(1) of the Workers
Compensation Act. In making this submission, counsel for the Minister
relies firstly on the statements made by Mr. Morton in his reasoning to the
effect that WCAT did not have jurisdiction to decide the issues raised by
counsel for the Minister in the proceedings before WCAT. Mr. Kwan takes
the position that, as suggested by Mr. Morton, this court, and not WCAT, has
jurisdiction to decide those issues.

[35]        
On the footing that Mr. Morton’s decision on the jurisdiction question
was correct, Mr. Kwan has made arguments on this application that are similar
to the arguments made by counsel for the Minister to WCAT. The essence of his
argument is that the Government of British Columbia was found to be an employer
by WCAT, that the Minister either stands in the shoes of the government or is
the agent of the government for the purposes of s. 11 of the Police Act
and that, as a consequence, the Minister should be accorded the same status as
the government, i.e. that of an employer, so as to qualify for the defence in
s. 10(1) of the Act. It is contended that WCAT decided only that the Minister
was not an employer in his capacity as an elected official. Counsel maintains
that the Minister should be accorded the status of employer by reason of the
“office” of the Minister of Public Safety and Solicitor General being “a part
of government and which transcends elections and appointments;” or
alternatively on the ground that the Minister is the agent of the government.
Counsel did not repeat the argument made by counsel for the Minister to WCAT (referred
to at page 19 of the decision) to the effect that provincial constables act on behalf
of the Minister in enforcing the law and preserving the peace.

Position of the respondents

[36]        
Mr. Murphy, counsel for the plaintiff, and Mr. Quinlan, counsel for the
defendant William Bethell have both argued that WCAT has conclusively
determined that “. . . the Minister was not an employer engaged in an industry
within the meaning of Part 1 of the Workers Compensation Act.” It is
contended that this was a question within the exclusive jurisdiction of WCAT to
answer, and that WCAT’s decision was “. . . final and conclusive and . . . not
open to question or review in any court.” Finally, it is pointed out that no
application for a judicial review of WCAT’s decision was made.

[37]        
By necessary implication, counsel for the respondents are asserting that
Mr. Morton was in error when he decided that the court had a residual
discretion or jurisdiction to decide whether the Minister was an employer
within the meaning of the Act.

[38]        
The respondents oppose this application (as it relates to the status of
the Minister) on a procedural ground. It is first argued that the applicants
filed an application for summary trial in February 2009, seeking relief similar
to what is now being claimed, but never brought the application on for hearing.
Next, counsel submit that on May 17, 2011, the court ordered the applicants to
bring their application to hearing in July or August of 2011 (so as to preserve
the trial date of February 6, 2012), but that the defendants failed to do this
and had not even set a hearing date for the application as of January 25, 2012.
It is correctly pointed out that this conduct of the applicants resulted in the
trial having to be adjourned. The respondents say that, in these circumstances,
the court should decline to consider the application on the merits and should
dismiss it.

[39]        
If the court were to accept jurisdiction and decide the application on
the merits, the respondents would argue that whatever the Minister’s relationship
to the government might be, he is not an agent of the government.

Reply position of the applicants

[40]        
In reply to the exclusive jurisdiction argument of the respondents, the
applicants submit that WCAT’s decision as to the scope of its jurisdiction, and
the court’s jurisdiction, was correct. Counsel argues that the court can
properly decide the issue raised by the Minister, because it is a question that
falls within the court’s authority to determine the legal effect of WCAT’s
certified findings on the plaintiff’s action.

[41]        
In reply to the procedural objection raised by the respondents, Mr. Kwan
states that he did not consider the court’s direction that the summary trial
application be heard in July or August of 2011, to be a formal order. But he
acknowledged that he was obliged and expected to bring the application within
that time period, and that he simply failed to do so. No real explanation for
this failure was offered.

Decision as to the “estoppel” argument

[42]        
In these circumstances, I see no meaningful difference in characterizing
the obligation of the applicants as being “ordered” or “directed.” It was
supposed to be done and it was not done.

[43]        
However, when August 2011 came and went without any application having been
made by these defendants, the plaintiff could have promptly sought an order
requiring Mr. Kwan to bring his application on immediately. That was not done.
The evidence does not reveal whether counsel for the plaintiff was privately
pressing Mr. Kwan to bring his application to hearing. But no formal
complaint was registered with the court until the trial management conference
on January 25, 2012, almost five months after the time when the application
should have been brought. I think the complaint of the plaintiff about the
unexplained and prolonged delay is well founded. But in my opinion, the conduct
of the applicants may more properly be considered as a relevant factor on the
issue of costs which may have been incurred by the other parties in preparing
for a trial that did not proceed. In my opinion, the application should be heard
and decided.

The issues

[44]        
Counsel for the applicants describes the issue as being “whether the
statutory bar [in s. 10(1) of the Act] precludes a claim against the Minister.”
In my view, this description is too generalized. I would frame the issues in
this way:

a)    Has the question
of whether the Minister is an employer within the meaning of s. 10(1) of
the Workers Compensation Act been conclusively determined against the
Minister by WCAT?

b)    If not, then
does the court have jurisdiction to determine whether the Minister is an
employer for the purpose of s. 10(1) of the Act on a ground not decided by
WCAT, or is that question within the exclusive jurisdiction of WCAT?

c)     If the
court has jurisdiction to decide the issue, then is the Minister an employer
for the purpose of s. 10(1) of the Act, by reason of his powers and duties
under the Police Act, and by reason of him (or the “office” of the
Minister) being the designate or the agent of the government?

The first issue: Has the question of whether the Minister is an employer
within the meaning of s. 10(1) of the Workers Compensation Act been
conclusively determined against the Minister by WCAT?

[45]        
Under s. 254 of the Act, WCAT is given:

. . . exclusive jurisdiction to inquire into, hear and
determine all those matters and questions of fact, law and discretion arising
or required to be determined under this Part . . . including . . .

(c)        all matters that
the appeal tribunal is requested to determine under s. 257.

[46]        
Under s. 257(2)(d) of the Act, WCAT is given jurisdiction (among other
things) to determine in a personal injury action whether

(d)        An employer was,
at the time the cause of action arose, engaged in an industry within the
meaning of Part 1.

[47]        
In paragraph 7 of the certificate issued on June 23, 2008, WCAT decided
that:

7.         The defendant,
Minister of Public Safety and Solicitor General, was not an employer engaged in
an industry within the meaning of Part 1 of the Workers Compensation Act.

[48]        
As pointed out by counsel for the respondents, s. 255(1) of the Act
makes WCAT’s decision:

. . . final and conclusive and .
. . not open to question or review in any court.

[49]        
The effect of subsections 255(4) and (5) is that a certified copy of
WCAT’s final decision may be filed in the Supreme Court and upon it being so
filed, it “has the same force and effect . . . as if it were a judgment of the
Supreme Court.”

[50]        
As I see it, WCAT’s task was to determine whether the Minister was an
employer engaged in an industry within the meaning of Part 1 of the Workers
Compensation Act, at the time the plaintiff’s cause of action arose on
November 8, 2004. The tribunal did determine that issue and decided
it in the negative. A certificate of WCAT’s findings has been filed in this
action. By operation of s. 255(5) of the Act, the finding by WCAT that the
Minister was not an employer is tantamount to a judgment of this court. A judge
of this court cannot sit in appeal of such a judgment.

[51]        
In my view, WCAT has exercised its exclusive jurisdiction in deciding
that the Minister is not an employer within the scope of the Act, and that
decision has become equivalent to a judgment of this court by the filing of the
WCAT certificate. It seems to me that the court must accept that decision and
cannot revisit the issue. To do so would not only amount to a collateral attack
on a final decision of WCAT made within its exclusive jurisdiction, but would
also amount to entertaining an appeal from a judgment of this court.

[52]        
The logical effect of WCAT’s finding on the plaintiff’s action is that
his action against the Minister is not barred by s. 10(1) of the Act.

[53]        
My conclusion on the first issue is that the court would be entrenching
on the exclusive jurisdiction of WCAT if it embarked on an inquiry to determine
whether the Minister had a status that WCAT has decided he did not have.
Because the certificate has been filed, such an inquiry would also infringe the
rule against entertaining an appeal from a judgment of this court.

[54]        
For the reasons set out above, the first order sought by the applicants
will be refused. That part of the application is dismissed.

[55]        
It is not strictly necessary for me to decide the other two issues that
I have previously defined. However, since extensive argument was presented by
the applicants on these questions, I will state what my decisions on these
other two issues would be, and give some reasons for those decisions.

The second issue: Does the court have jurisdiction to determine whether the
Minister is an employer for the purpose of s. 10(1) of the Act on a ground not
decided by the WCAT, or is that question within the exclusive jurisdiction of
WCAT?

[56]        
The second issue requires a determination of whether Mr. Morton was in
error when he said, in effect, that his decision did not foreclose the Minister
from seeking to persuade the court that the Minister was an employer by reason
of him (or his office) being the government’s designate (equivalent) or agent
for the purposes of s. 11 of the Police Act. In considering this
issue, it must be kept in mind that WCAT did decide that the government was an
employer.

[57]        
Mr. Morton seems to have reasoned to his conclusion that WCAT had no
jurisdiction to determine the issue raised by counsel for the Minister, by the
following sequence of decisions:

a)    It is accepted
that WCAT has exclusive jurisdiction to determine the status of the parties to
a civil action under the Workers Compensation Act, when asked by a party
to do so.

b)    WCAT does not
have jurisdiction to decide what effect the tribunal’s findings as to the
status of the parties will have on the law suit. That is, WCAT cannot decide whether
s. 10(1) of the Act does or does not bar the plaintiff’s action against a
defendant. That is an issue that can only be decided by the court.

c)     To decide the
issue raised by counsel for the Minister would go beyond determining the status
of a party, and would entrench upon the jurisdiction of the court to determine
the effect of WCAT’s findings (as to the status of a party) on the plaintiff’s
action.

[58]        
The first two of these decisions are clearly correct. But in my opinion,
the question of whether or not the Minister was an employer for the purpose of
s. 10(1) of the Act, for reasons argued by counsel for the Minister, is not a
matter relating to what legal effect WCAT’s findings will have on the civil
action of a plaintiff. If Mr. Morton was of the opinion that the Minister
might be an employer other than “in his own right,” for reasons that only the
court could decide, then I think he was in error. As previously stated, it is
my opinion that only WCAT can decide whether or not a person or entity is an
employer within the meaning of the Workers Compensation Act.

[59]        
My conclusion on the second issue is that WCAT should have decided
whether or not the Minister was an employer, based on a consideration of the
reasons advanced by counsel for the Minister in the proceedings before WCAT.
Only WCAT, and not the court, has jurisdiction to decide whether any person or
legal entity is an employer within the meaning of the Act.

The third issue: If the court has jurisdiction to decide the issue, then is
the Minister an employer for the purpose of s. 10(1) of the Act, by reason of
his powers and duties under the Police Act, and by reason of his (or the
“office” of the Minister) being the designate or the agent of the government?

[60]        
In its certificate of findings, the appeal tribunal found that the
Minister was not an employer engaged in an industry within the meaning of Part
1 of the Workers Compensation Act, but found that the Government of
British Columbia was such an employer. This latter finding, together with the
wording of s. 11(1) of the Police Act, was the foundation of Mr. Kwan’s
argument.

[61]        
It seemed to be accepted by all parties that at the time of the
accident, the defendant RCMP officers were not “workers,” the Government of
British Columbia was not their employer and they were not acting in the course
of employment, within the meaning of the Workers Compensation Act.
Counsel informed the court that RCMP officers are employees of the Federal
Government. It must follow that the defendant RCMP officers are not employees
of the Minister.

[62]        
Notwithstanding these apparently accepted facts, counsel for the
Minister requested a determination from WCAT as to whether the government of
British Columbia was an employer. WCAT found not only that the government was
an employer but further found that

9.         Any action or
conduct of the Government of British Columbia, or its servant or agent, which
caused the alleged breach of duty of care, arose out of and in the course of
employment within the scope of Part 1 of the Workers Compensation Act.

[63]        
Since WCAT also found that the Minister was not a “worker” or an
“employer,” and since the plaintiff was not alleging a cause of action against
the government of British Columbia or an employee of the government, I am
unable to see the relevance of such a finding to the facts of this case. Mr.
Morton (at page 28 of his decision) recognized that there was “an ambiguity” in
this finding, but does not clearly explain what this ambiguity consists of. One
might speculate and say that Mr. Morton was leaving open the possibility that
the court might find that the Minister was an employer because he was an “agent”
of the government. It is possible Mr. Morton further reasoned that, to
accommodate this potential finding by the court, WCAT should decide in advance that
any potential negligent conduct of the Minister that could have caused or
contributed to the plaintiff’s injury, “arose out of and in the course of
employment within the scope of Part 1 of the Workers Compensation Act.”
Such findings by the court would trigger the s. 10(1) statutory bar defence, so
that the plaintiff could not maintain his action against the Minister (at
least, not for direct negligence). That is a possible explanation for why Mr.
Morton made the finding in paragraph 9 of the certificate (and at page 28 of
the decision). But the intended purpose of that finding (paragraph 9 of the
certificate) remains unclear to me.

[64]        
With respect to the present application, the issue is complicated
further by the particulars pleaded in paragraph 33 of the amended statement of
defence of the applicants. In summary, those particulars were said to constitute
the defence in s. 10 of the Act, and included the following:

a)    The government
of British Columbia was an employer;

b)    Constables
Furtmann and Turner were acting as provincial constables and agents of the
government of British Columbia;

c)     The
Minister is named as a defendant on behalf of the government of British
Columbia pursuant to s. 11 of the Police Act; and

d)    Any action or
conduct of the agent of the government of British Columbia, which caused the
alleged breach of duty of care, arose out of and in the course of employment
within the scope of Part 1 of the Workers Compensation Act.

[65]        
The applicants on the present hearing did not argue that Constables
Furtmann and Turner were acting as agents of the government of British
Columbia.

The statutory bar in S. 10(1) of the Workers Compensation Act

[66]        
I have attached s. 10(1) of the Act as an appendix to these reasons. It
seems to me that, in a negligence action for damages for personal injury, in
order for a defendant to succeed in this defence, it must be established:

a)    that the
plaintiff, at the time of the alleged injury, was a “worker;”

b)    that the alleged
injury “[arose] out of and in the course of [the plaintiff’s] employment;”

c)     that the
defendant was the plaintiff’s employer, or the plaintiff’s co-worker, or “any
employer within the scope of this Part” (i.e., Part 1 of the Act), or “any
worker;” and

d)    that the conduct
of the defendant which is alleged to have caused the injury “arose out of and
in the course of employment within the scope of this Part” (i.e. Part 1 of the Act).

[67]        
Where the statutory bar applies in favour of a defendant, the plaintiff
cannot maintain his or her action as against that defendant. The plaintiff is
restricted to making a claim for workers compensation in respect of the injury
caused by that defendant.

[68]        
It appeared to be common ground that, if the Minister was an employer
within the meaning of the Workers Compensation Act, then s. 10(1) would
be an absolute bar to any action being brought against him by the plaintiff,
i.e., a “worker,” (for any tort allegedly committed by him or by a police
officer), even though neither the government nor the Minister was the employer
of the police officers involved. The potential scope of the statutory bar
appears to be broad.

The argument

[69]        
In arguing that the Minister was the designate or the agent of the
government, Mr. Kwan relied heavily on the fact that s. 11(1) of the Police
Act contains the introductory words: “the Minister, on behalf of the
government, is jointly and severally liable . . . .” Similar wording is
contained in s. 14(1) of the Police Act, which authorizes the Minister
to enter into agreements with Canada to arrange for the Royal Canadian Mounted
Police to provide services to British Columbia. It is said that this makes the
Minister the designate or the agent of the government for the purposes of the Police
Act. That may be a reasonable conclusion. But if it is, I do not agree that
this conclusion logically strengthens the proposed legal inference that the
Minister, like the government, is an employer within the scope of Part 1 of the
Workers Compensation Act.

[70]        
In support of his submission, Mr. Kwan placed considerable importance on
the judgment of Mr. Justice Macaulay in Hill v. Hurst, 2001 BCSC 1191.
In that case, an RCMP officer was found to have been negligent in driving
through a red light at an intersection while responding to an emergency call in
a marked police vehicle with dome lights flashing and siren activated. The
police car struck the plaintiff’s vehicle which was moving through the
intersection on a green light, and the plaintiff was injured. The plaintiff
sued the police officer, the Attorney General of Canada and Her Majesty the
Queen in Right of the Province of British Columbia. The Attorney General of
British Columbia (who was then “the Minister” under the Police Act) was
not sued.

[71]        
The issues relevant to the present dispute that were decided by Macaulay
J. were whether the plaintiff could obtain judgment against any of the named
defendants, and whether the plaintiff should be granted leave to join the
Attorney General of British Columbia as a defendant. The defendants had pleaded
(and argued) that the RCMP officer could not be personally liable by reason of
the operation of s. 21(2) of the Police Act, and that s. 10 and s. 11 of
the Crown Liability and Proceedings Act prevented the Attorney General
of Canada from being vicariously liable. Macaulay J. accepted both of these
submissions.

[72]        
The defendants also argued that vicarious liability under s. 11 of the Police
Act could not be imposed on Her Majesty the Queen but only on “the
Minister” (who was then the Attorney General of British Columbia). This defence
based on s. 11 of the Police Act had not been pleaded by the defendants.

[73]        
The plaintiff opposed the raising of this defence at the end of the
trial, without having pleaded it, and on the further ground that the defendants
had acquiesced in the procedure taken by the plaintiff. In the alternative, the
plaintiff sought leave to add the Attorney General of British Columbia as a
defendant.

[74]        
Macaulay J. decided that the “wrong party” defence should have been
pleaded. He then noted (at paragraph 69) that s. 11 imposed liability on the
Minister “on behalf of the government,” which he considered to imply “that the
Minister be a nominal or representative defendant, in effect the agent of
government.” At paragraph 71, Macaulay J. stated:

The wording of s. 11 is broad
enough, in my view, to found a claim against the Crown not just the Minister.

[75]        
And at paragraph 72, he said this:

I can see no bar to a plaintiff
naming one or both the Minister or the government as defendants when advancing
a claim under s. 11.

[76]        
Finding no prejudice to the defendants, Macaulay J. granted the plaintiff’s
application to join the Attorney General of British Columbia as a defendant. He
then found both the Attorney General of British Columbia and Her Majesty the
Queen liable, and dismissed the action as against the other defendants.

[77]        
Based on the reasoning in Hill v. Hurst, Mr. Kwan argued that, if
a plaintiff can claim against both the Minister and the government for vicarious
liability for the torts of police officers under s. 11 of the Police Act,
and if the government can claim the statutory bar in s. 10(1) of the Workers
Compensation Act, then:

It would be inconsistent in law
for a statutory bar to apply to one and not the other.

Presumably, counsel means to say that it would be unjust if
the s. 10 bar would be a good defence against a plaintiff who sued only the
government (an employer), but would not be a defence where the plaintiff sued
the Minister. I am unable to see the logic in this argument. It seems to
prematurely assume that, because the government and the Minister can both be
vicariously liable under the Police Act, they must both be employers for
the purpose of s. 10(1) of the Workers Compensation Act.

[78]        
Counsel for the defendant William Bethell submits that the judgment of
the Court of Appeal in Sulz v. British Columbia (Minister of Public Safety
and Solicitor General) 2006 BCCA 582; 60 B.C.L.R. (4^th) 43
defeats Mr. Kwan’s argument based on Hill v. Hurst. I think Mr.
Quinlan’s argument has merit.

[79]        
At paragraph 5 of Sulz, Madam Justice Levine, speaking for the
court, said this:

[5]        The Province also
claims that the trial judge erred in finding the Province liable, when the
person responsible for the actions of police constables under the Police Act
is the Minister of Safety and Solicitor General. The relief the Province seeks
for this error is an order substituting the Minister in place of the Province.
I would make that order, effective with these reasons for judgment. For
convenience, I will refer to the Minister in these reasons as the “Province”.

Decision

[80]        
It seems to me that the Court of Appeal is saying, by necessary
implication, that the province cannot be vicariously liable under s. 11 of the Police
Act, and that only the Minister can be. If that is so, then on hindsight,
it would appear that Mr. Justice Macaulay should not have granted judgment
against both the government and the Minister, but should only have found the
Minister to be vicariously liable. To my mind, that result cancels out the
argument of the applicants based on Hill v. Hurst.

[81]        
If the plaintiff had sued the Government of British Columbia (which
would have to be named as “Her Majesty the Queen in Right of the Province of
British Columbia”: s. 7 of the Crown Proceedings Act), the finding of
WCAT that the government was an employer within the meaning of the Workers
Compensation Act could have the legal effect of entitling the government to
the statutory bar in s. 10 of the Act (but only if the conduct of the
government, or its servant or agent, was a cause of the injury, and that
conduct “arose out of and in the course of employment”). But the plaintiff has
not sued the government, nor could he have sued the government, in my opinion.
I am not persuaded that the Minister should be accorded the status of an
employer for the purpose of s. 10(1) of the Act, simply because the government
is an employer and because the Minister is the designate, or is the agent of,
the government for the purposes of the Police Act.

Disposition

[82]        
The application for an order dismissing the action as against the
defendant Minister of Public Safety and Solicitor General is dismissed.

The application of the plaintiff

[83]        
Only two defendants, William Jeffrey Bethell, deceased, and Minister of
Public Safety and Solicitor General, remain in the action. The decisions I have
already made would justify the order sought by the plaintiff to strike out
paragraph 33 of the amended statement of defence filed October 3, 2008. I will
grant that order.

[84]        
The writ and statement of claim were filed on October 10, 2006. Although
the statement of claim has never been amended, it appears that Civil Rule
6-1(1) would not allow the plaintiff to amend that pleading now, without leave
of the court or the consent of the other parties.

[85]        
In normal circumstances, I would have granted leave to the plaintiff to
amend the statement of claim by deleting the allegation of gross negligence
against Constable Furtmann. If that was the only amendment being sought, I
would not have required the plaintiff to file and deliver an amended statement
of claim to reflect that simple deletion. But I decline to make these orders at
this time.

[86]        
In my opinion, as of February 1, 2012, the amendments sought in
paragraphs 1, 3 and 4 of the plaintiff’s notice of application were not in
accordance with the Rules of Court. If these amendments were permitted
at that time, the plaintiff would in effect be circumventing civil Rules 9-8(2)
and (4), and/or civil Rules 6-2(7(a) and 6-2(8)(a). I would not
entertain these parts ( paragraphs 1 to 4) of the plaintiff’s application, for
that reason.

[87]        
In addition, the orders I have already made on the first application
have removed the police officers as party defendants, struck out the allegation
of gross negligence against Constable Furtmann, dismissed the allegation of
negligence against Constable Turner and dismissed the claim against the
Minister based on Constable Turner’s negligence. The result being sought by the
plaintiff appears to have been accomplished. Counsel may no longer wish to
proceed.

[88]        
I will adjourn generally the plaintiff’s application for the relief
sought in paragraphs 1 to 4 of his notice of application. If counsel for the
plaintiff considers it necessary to amend the style of cause and the statement
of claim to reflect the orders made, the application may be rescheduled.

Costs

[89]        
In accordance with the request of all counsel, the costs of these two
applications, and the costs that may have been thrown away by the plaintiff and
by the defendant William Bethell in preparing for the aborted trial, may be
spoken to. I think it would be best if counsel could arrange a date with the trial
scheduling manager to speak to the application in court, rather than filing
written submissions, unless all counsel would prefer to make submissions in
writing.

“D.A.
Halfyard, J.”
The Honourable Mr. Justice Halfyard

APPENDIX A

Limitation
of actions, election and subrogation

10 (1)   The
provisions of this Part are in lieu of any right and rights of action,
statutory or otherwise, founded on a breach of duty of care or any other cause
of action, whether that duty or cause of action is imposed by or arises by
reason of law or contract, express or implied, to which a worker, dependant or
member of the family of the worker is or may be entitled against the employer
of the worker, or against any employer within the scope of this Part, or
against any worker, in respect of any personal injury, disablement or death
arising out of and in the course of employment and no action in respect of it
lies. This provision applies only when the action or conduct of the employer,
the employer’s servant or agent, or the worker, which caused the breach of duty
arose out of and in the course of employment within the scope of this Part.