IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121029

Docket: S114724

Registry:
Vancouver

Between:

Robert Callan

Plaintiff

And

Donald Cooke, The
Attorney General of Canada for and behalf

of Her Majesty the
Queen in Right of Canada, The Royal Canadian Mounted Police, and the Abbotsford
Hockey Association

Defendants

Before:
The Honourable Madam Justice E.A. Arnold-Bailey

Reasons for Judgment

Introduction

[1]            
This is an application on behalf of the Attorney General of Canada (“the
Attorney General”) to strike out certain portions of the Notice of Civil Claim (“Notice”)
of Robert Callen (“the plaintiff”).

[2]            
The plaintiff claims that he was sexually assaulted by the
defendant Donald Cooke (“Mr. Cooke”) on numerous occasions during the
years 1982 through 1984. During that time the plaintiff was 14 to 16 years old
and Mr. Cooke was the assistant hockey coach of the Abbotsford “AAA”
Midget Hockey Club where the plaintiff played hockey. Mr. Cooke was also an
officer of the Royal Canadian Mounted Police (“RCMP”) stationed in Abbotsford,
BC. The plaintiff is currently 43 years old. No reports of any alleged
wrong-doing by Mr. Cooke in relation to the plaintiff were reported to the
police prior to 1994. The plaintiff alleges that many of these acts of sexual
assault occurred while Mr. Cooke was acting in his capacity as an
assistant hockey coach, hence his claim against the defendant, the Abbotsford
Minor Hockey Association, a non-profit society incorporated in
British Columbia (“the Hockey Association”). The plaintiff also alleges
that many of these acts of sexual assault occurred while Mr. Cooke was on
duty, in uniform, and/or acting in his capacity as an officer or constable of
the RCMP. As a result of the sexual assaults that the plaintiff alleges were
committed upon him by Mr. Cooke, the plaintiff claims psychological,
physical, and economic harm giving rise to his claims for general, special,
aggravated and punitive damages, costs, and special costs.

[3]            
The portions of the Notice that the Attorney General seeks to strike out pursuant to Rule 9-5(1)(a) of
the Rules of Court relate to the plaintiff’s claim of negligent
investigation of Mr. Cooke by the RCMP, and breach of fiduciary duty owed
by the RCMP to the plaintiff.

[4]            
Specifically, the plaintiff claims that the RCMP
was negligent in investigating complaints by others against Mr. Cooke and
that this exacerbated the effect and impact of the alleged assaults on the
plaintiff (Notice, Part 1, paras. 18 and 19, and Part 3, paras. 7-11
and 14).

[5]            
The plaintiff also claims that a fiduciary
relationship existed between the plaintiff and the RCMP, and that the RCMP
breached their alleged fiduciary duty (Notice, Part 3, paras. 6 and 15).

[6]            
At the hearing, the counsel for the plaintiff consented to those
portions of the Notice referring to the civil tort of conspiracy (Notice, Part
1 para. 17, Part 3 para. 13) be struck and I so order.

[7]            
Counsel for the plaintiff also consented to the RCMP being removed from
the style of cause. The Attorney General (of Canada) is the
proper party to name as the Attorney General provided police services through
the Ministry of the Solicitor General for Canada (until 2005 when the Ministry
of Public Safety Canada was given that responsibility), via a police force
created by statute of Canada (the Royal Canadian Mounted Police Act, R.S.C.,
1985, c. R-10). For the purposes of determining liability in
proceedings against the Crown, a person who was at any time a member of RCMP
shall be deemed to have been at that time a servant of the Crown (Crown Liability and Proceeding Act, R.S.C., 1985,
c. C-50, s. 36).

[8]            
Reference to “Her Majesty the Queen” in the style of cause is not
necessary and is also to be deleted as pursuant to section
23(1) of the Crown Liability and Proceedings Act. Proceedings against
the Crown may be taken in the name of the Attorney General of Canada.

[9]            
Counsel for the Hockey Association attended the application. He took no
position on behalf of the relief sought by the Attorney General. He did however
point out that in relation to the plaintiff’s claim of breach of fiduciary
duty,  the plaintiff has pleaded two independent fiduciary duties, one with
regards to the RCMP and one in relation to Mr. Cooke’s role as an
assistant coach with the Hockey Association.

[10]        
Counsel for Mr. Cooke, although served with this application, did
not attend at the hearing. He did, however, attend on the morning of the second
day of hearing to speak briefly to a related application.

[11]        
In the event that the Attorney General is successful with its
application the plaintiff’s claim will focus on the sexual assaults alleged to
have been committed upon him by Mr. Cooke, the vicarious liability of the
Attorney General arising out of the fact that Mr. Cooke was an RCMP
officer, and the liability of the Hockey Association said to arise by virtue of
Mr. Cooke being employed as an assistant hockey coach.

Issues to be Decided

[12]        
There are two issues to be decided on this application, namely:

1.     Do those
portions of the Notice relating to negligent investigation of Mr. Cooke by
the RCMP disclose a reasonable cause of action, insofar as the RCMP owed a duty
of care to a victim of crime in the circumstances raised in the plaintiff’s
claim, or are they to be struck out?

2.     Do those
portions of the Notice relating to a breach of fiduciary duty owed by the RCMP
to the plaintiff disclose a reasonable cause of action, or are they to be
struck out?

Analysis
and Findings

The
Test for Striking out a Claim

[13]        
Rule 9-5(1)(a) of the Rules of Court allows
the Court to strike or amend a pleading if the pleading discloses no reasonable
claim.

[14]        
The law with regards to when it is appropriate
to strike out a claim is not at issue. It is succinctly set out in Part 3 of the
submissions on behalf of the Attorney General as follows:

3.         The question at issue on a motion
to strike is, assuming the facts pleaded to be true, is it plain and obvious
that the pleading discloses no reasonable cause of action? R. v Imperial
Tobacco Canada Ltd., 2011 SCC 42; Hunt v. Carey Canada Inc., [1990]
2 SCR 959.

4.         Evidence is not admissible on an
application to strike or amend pleadings under Rule 9-5(1). Therefore, such an
application proceeds on the basis that the facts pleaded are true, unless
"they are manifestly incapable of being proven". The claimant must
clearly plead the facts making its claim. R. v. Imperial Tobacco
Canada Ltd., 2011 SCC 42.

5.         The Chief Justice has stated that
the power to strike out claims that have no reasonable prospect of success is a
valuable housekeeping measure essential to effective and fair litigation. It
unclutters the proceedings, weeding out the hopeless claims and ensuring that
those that have some chance of success go on to trial. Striking out claims that
have no reasonable prospect of success promotes litigation efficiency, reducing
time and cost. The efficiency gained by weeding out unmeritorious claims in
turn contributes to better justice. The more the evidence and arguments are
trained on the real issues, the more likely it is that the trial process will
successfully come to grips with the parties’ respective positions on those issues
and the merits of the case. R. v. Imperial Tobacco Canada Ltd., 2011 SCC
42 at paras. 19 and 20.

[15]        
In the case of Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 [Hunt],
Justice Wilson sets out the test for when it is appropriate to strike out a
statement of claim at 980:

[A]ssuming 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.

[16]        
In Hunt, Justice Wilson found that the complexity and novelty of
the conspiracy claim alleged should not constitute a bar to it moving forward to
trial. The law surrounding conspiracy at the time was somewhat unsettled and a
claim for conspiracy was best evaluated in light of the evidence. Justice
Wilson found that allowing this action to proceed would not amount to an abuse
of process. As long as the plaintiff has some chance of success, however
remote, the claim should be allowed to proceed to trial.

[17]        
The test from Hunt has been maintained in Rule 9-5(1) motions to
strike in the recent case of Woolsey v. Dawson Creek (City) 2011 BCSC
751, at para. 29.

[18]        
In R v. Imperial Tobacco Canada Ltd., 2011 SCC 42 [Imperial
Tobacco], Chief Justice McLachlin cautions against striking a claim that
proposes a novel claim:

[21]      Valuable as it is, the motion to strike is a tool
that must be used with care. The law is not static and unchanging… The
history of our law reveals that often new developments in the law first surface
on motions to strike or similar preliminary motions, like the one at issue in Donoghue
v. Stevenson. Therefore, on a motion to strike, it is not determinative
that the law has not yet recognized the particular claim. The court must rather
ask whether, assuming the facts pleaded are true, there is a reasonable
prospect that the claim will succeed. The approach must be generous and err
on the side of permitting a novel but arguable claim to proceed to trial. (Emphasis
added.)

[19]        
However, even a complex and novel legal claim may properly be struck
from a pleading if on a proper analysis of the law it is plain and obvious that
the claim cannot succeed: Greater Vancouver (Regional District) v. British
Columbia, 2009 BCSC 577 at para. 31, affd 2011 BCCA 345.

[20]        
Accepting facts as true when they are not clearly or specifically pleaded
presents some difficulty in a motion to strike. However, it is incumbent on the
Court to accept whatever facts are pled unless it is impossible for the facts
to be proven. In Imperial Tobacco the Supreme Court addressed the issue
of accepting facts that had not yet been pled but may arise as the case
progresses, McLachlin C.J. states that on a motion to strike:

[22]      … It is incumbent on the claimant to clearly
plead the facts upon which it relies in making its claim. A claimant is not
entitled to rely on the possibility that new facts may turn up as the case
progresses. The claimant may not be in a position to prove the facts
pleaded at the time of the motion. It may only hope to be able to prove them. But
plead them it must. The facts pleaded are the firm basis upon which the possibility
of success of the claim must be evaluated. If they are not pleaded, the
exercise cannot be properly conducted.

[21]        
On a motion to strike, a judge cannot “consider what evidence adduced in
the future might or might not show” (Imperial Tobacco at para. 23).

[22]        
In this case the plaintiff pleads that there were other complaints and
reports of inappropriate conduct and/or sexual assaults upon others by Mr. Cooke
and/or another member of the RCMP at times material to the claims of the
plaintiff. The plaintiff further pleads that insufficient investigations were
made into these complaints.

[23]        
I note that the claims in this case are vague and do not disclose
details as to who made complaints, the nature of the complaints, and what
investigations were conducted into these complaints. Nor does the claim provide
details as to when these complaints were made beyond that they were made at the
material time.

[24]        
However, in assessing whether the plaintiff’s negligent investigation
claim may proceed, I will assume that these bare facts are true.

Issue No. 1:
Do those portions of the Notice relating to negligent investigation of Mr. Cooke
by the RCMP disclose a reasonable cause of action?

Portions of the Notice Relevant
to Negligent Investigation

[25]        
In Part 1, paras. 18 and 19, the Notice sets out a claim against
the RCMP for negligent investigation:

18.       The Plaintiff says that the complaints and reports
of inappropriate conduct and/or sexual assaults upon others by Donald Cooke
and/or another member of the R.C.M.P. at times material to the claims of the
Plaintiff herein, were not investigated or, alternatively, not investigated
appropriately or thoroughly and the Plaintiff says that such failure to
investigate or follow-up on findings of investigations or cause the individual
defendant, Donald Cooke to cease the assaults that were being committed upon
him or seek information to identify him and offer counseling and assistance,
constituted a continuation or aggravation of the assaults of the Defendant,
Donald Cooke.

19.       The Plaintiff says that the R.C.M.P. through its
failure to investigate and/or follow-up upon findings in an investigation of
Donald Cooke which was in fact conducted, aggravated and/or perpetuated and/or
magnified the physical and psychological impact of the assaults committed upon
the Plaintiff by Donald Cooke.

[26]        
In Part 3, paras. 7-11 the plaintiff claims that complaints and
reports of inappropriate conduct and/or assaults were not properly
investigated.

7.         The Plaintiff says that complaints and reports of
inappropriate conduct and/or sexual assaults upon other persons by the
Defendant, Donald Cooke and another/or others, made to the R.C.M.P., were not
investigated or, alternatively, not investigated appropriately or thoroughly.

8.         The Plaintiff says that the failure of the R.C.M.P.
to investigate thoroughly or act upon information available to it, enabled the
Defendant, Donald Cooke, to continue assaults that were being committed upon
the Plaintiff or, alternatively, impeded or prevented the R.C.M.P. from
identifying the Plaintiff as a victim of Donald Cooke and thereby taking steps
to prevent the assaults, acknowledge the assaults, offer therapy, counselling
and assistance. The Plaintiff says that the failure of the R.C.M.P. to act on
information available to it or information that ought to have been available to
it in the circumstances, constitutes an aggravation or perpetuation or
magnification of the physical and psychological injuries caused by the assaults
of the defendant, Donald Cooke upon the Plaintiff.

9.         In particular, the Plaintiff says that the
R.C.M.P. enabled and/or facilitated, aggravated and/or perpetuated the physical
and psychological impact of the assaults of the Defendant, Donald Cooke upon
the Plaintiff through:

(a) Failing to interview or
otherwise obtain particulars or details of the complaints of other individuals
who had come forward with information about Donald Cooke and assaults asserted
to have been committed by him;

(b) Failing to review or
interrogate or otherwise query Donald Cooke and others associated with him as
to whereabouts, activities, proclivities, record and/or other complaints or
peripheral information by way of follow-up to allegations made by others about
him, thereby missing an opportunity to offer assistance and comfort to the
Plaintiff;

(c) Intentionally dismissing or
suppressing complaints made by other individuals about Donald Cooke as
unwarranted or unfounded, when in fact, information existed sufficient to
justify further investigations and enquiries of the activities of Donald Cooke,
his whereabouts, activities, proclivities, contacts while on duty (inclusive of
“ride-a-longs”) with young persons including the Plaintiff, his record and/or
other complaints or peripheral information;

(d) Failing to investigate and/or
corroborate assertions made by others about the Defendant, Donald Cooke, and
other individuals who were members of the R.C.M.P. presently unknown to the
Plaintiff herein, through interviews and interviews or collateral witnesses,
parties or the review of records;

(e) Failing to prosecute or
complete disciplinary action against Donald Cooke through the internal
protocols available to it.

(f) Such further and other
particulars as counsel may advise.

10.       The Plaintiff says that the actions or omissions of
the R.C.M.P. as particularized above contributed to and/or encouraged the continuation
of assaults by the Defendant, Donald Cooke upon the Plaintiff and led to the
failure of the R.C.M.P. to identify the Plaintiff as one of the victims of Donald
Cooke thereby preventing the R.C.M.P. from offering assistance and counselling.

11.       The Plaintiff says that the actions or omissions of
the R.C.M.P. as particularized herein exacerbated the effect and impact of the
assaults committed by the Defendant, Donald Cooke upon the Plaintiff.

Position of the Attorney General

[27]        
It is the position of counsel for the Attorney
General that the plaintiff’s pleadings (Notice, Part 1, paras.18 and 19, and Part
3, paras. 7-11 and 14) disclose no reasonable cause of action and should
be struck out. The Attorney General maintains that no duty of care is owed in an
investigation by the police to a victim of crime in the circumstances raised in
the plaintiff’s claim: Wellington v. Ontario, 2011 ONCA 274 [Wellington].

[28]        
Specifically, counsel submits that with limited
exceptions that do not arise on the facts of this case, police do not owe
victims of crime or their families a private law duty of care in relation to
the investigation of alleged crimes: Wellington, at para. 20.

[29]        
Furthermore, individual citizens are not
entitled to compensation in the absence of a thorough investigation or if the
desired outcome fails to materialize: Odhavji Estate v. Woodhouse, 2003
SCC 69 [Odhavji], at para. 40.

[30]        
Counsel submits that public authorities ought to
be free to make decisions in the general public interest without being
subjected to a private law duty of care to specific members within the general
public: Wellington, at para. 45; and that the primary relationship
in a criminal investigation is between the authority of the police and the
individual under investigation: Burnett v. Moir, 2011 BCSC 1469 [Burnett],
at paras. 425-426.

[31]        
While counsel admits there are limited
circumstances where a police service may be liable for negligent investigation,
for example, in a claim by the suspect under investigation as in Hill v.
Hamilton-Wentworth Regional Police, 2007 SCC 41 [Hill], or to a
specific group of victims for failure to warn of an imminent threat as in Mooney
v. BC (Attorney General), 2004 BCCA 402 [Mooney], he submits that
the plaintiff’s claim in this case does not disclose a cause of action for
negligent investigation and should be struck as it was in Wellington.

The
Position of the Plaintiff

[32]        
Counsel for the plaintiff agrees that the facts
as asserted in Part 2 of the Notice of Application of the Attorney General are
accurate. In addition, he submits by implication the plaintiff asserts at Part
1, para. 18 that others, not presently known to the plaintiff, made
complaints to the RCMP. The plaintiff is not able to identify these other
individuals, when they made their complaints and the nature of these
complaints. The plaintiff requires the release of records and documents in the
possession of the Abbotsford Police Department and/or the RCMP to ascertain the
identity of these individuals. An application to the Court for the release of
investigation files from the Abbotsford Police Department has been filed and is
scheduled for hearing.

[33]        
Where the plaintiff asserts
at Part 1, paras. 18 and 19 of the Notice that the failure to investigate
and/or follow-up upon findings “aggravated and/or perpetuated and/or magnified
the physical and psychological impact of the assaults committed upon the
plaintiff by Donald Cooke” by implication, the plaintiff is asserting that the
failure to investigate and/or follow-up on such complaints constitutes a
continuation of the assaults committed by Mr. Cooke, and constitutes a
form of misconduct or improper conduct magnifying and/or perpetuating the
original physical assault committed by Mr. Cooke. The plaintiff is asserting
that the failure by the RCMP to investigate or follow-up on complaints of
others constitutes a separate instance of tortious conduct.

[34]        
Further, the plaintiff claims that the failure to investigate by the RCMP as particularized in the Notice
is a fundamental component of the original assault, as Mr. Cooke, the
perpetrator of the assaults, is employed by the same organization as the entity
charged with investigating his conduct.

[35]        
Therefore, the plaintiff submits that the
present case falls under a novel exception (that a duty of care exists) to what
is conceded to be a general rule, that the police do not owe victims of
crime and their families a private law duty of care in relation to the
investigation of alleged crimes. On that basis the Court ought to permit his
claim for negligent investigation to proceed.

[36]        
The plaintiff asserts that the RCMP were aware of the
existence of other complainants, and were aware that the plaintiff, as a member
of this group of complainants, was part of a narrow and distinct group of
victims of historic sexual abuse, such that this knowledge and this unique
status is sufficient to support a special relationship of proximity: Jane
Doe v. Board of Commissioners of Police for the Municipality of Metropolitan
Toronto (1990), 72 D.L.R. (4^th) 580 [Jane Doe], at paras. 16-22;
Thompson v. Webber, 2010 BCCA 308 [Thompson]; Mooney
v. British Columbia (Attorney General), 2004 BCCA 402 [Mooney]; Wellington; O’Rourke et al. v. Schacht,
[1976] 1 S.C.R. 53 [O’Rourke]; and Beutler v. Beutler, [1983]
O.J. No. 505 (High Ct. Just.) [Beutler].

[37]        
According to the plaintiff, the special
relationship between the Mr. Cooke and the plaintiff, coupled with the
unique circumstance that the RCMP was charged with the responsibility of
investigating circumstances involving the misdeeds of its members establishes
the relationship of proximity.

[38]        
The plaintiff submits that Mr. Cooke’s actions were
an instance of police misconduct and therefore bear further on the tortious
liability for a failure to investigate or investigate appropriately or
thoroughly. In this regard the plaintiff relies upon Odhavji, at para. 57:

A second factor that strengthens the nexus
between the Chief and the Odhavjis is the fact that members of the public
reasonably expect a chief of police to be mindful of the injuries that might
arise as a consequence of police misconduct. Although the vast majority of
police officers in our country exercise their powers responsibly, members of
the force have a significant capacity to affect members of the public adversely
through improper conduct in the exercise of police functions. It is only
reasonable that members of the public vulnerable to the consequences of police
misconduct would expect that a chief of police would take reasonable care to
prevent, or at least to discourage, members of the force from injuring members
of the public through improper conduct in the exercise of police functions.

[39]        
In Odhavji the claim was that a failure of the
police chief to adequately investigate a shooting incident resulted in harmful psychiatric
consequences to the family of the victim of the shooting. Evaluating the
application of defendants to strike the portions of the claim relating to
inadequate investigation, Mr. Justice Iacobucci, for the Supreme Court
explained that while the police did not have a recognized duty of care toward the
family of the victim, it is reasonably foreseeable that a negligent
investigation in these circumstances would harm the family. The plaintiff
family should therefore not be deprived of their opportunity to argue that the
complained harm was a reasonably foreseeable consequence of the inadequate
investigation of the police shooting.

[40]        
Iacobucci J. scrutinizes the question of whether
there is sufficient proximity between the parties that a duty of care might
rightly be imposed upon the police chief in charge of the investigation of
misconduct. At para. 56, Iacobucci J. finds that because police misconduct
is internally regulated, those injured by this misconduct and any subsequent
inadequacy of investigation into this misconduct have a close causal connection
with the Chief of Police responsible for ensuring members of the force carry
out their duties lawfully.

[41]        
The plaintiff submits that the Supreme Court of Canada decision
in Hill concludes, as a matter of law, that police do have a duty of
care to persons accused of crime. The case provides a discussion and analysis
of how that duty is established. While Hill concerned the analysis of a
relationship between police and an accused, Chief Justice McLachlin at para. 27
suggested:

If a new relationship is alleged to attract liability of the
police in negligence in a future case, it will be necessary to engage in a
fresh Anns analysis, sensitive to the different
considerations which might obtain when police interact with persons other than
suspects that they are investigating. Such an approach will also ensure that
the law of tort is developed in a manner that is sensitive to the benefits of
recognizing liability in novel situations where appropriate, but at the same
time, sufficiently incremental and gradual to maintain a reasonable degree of
certainty in the law.

[42]        
Thus, Hill contemplates
the liability of police to victims of crime in certain instances, and ought to
encompass the circumstances of the present case, in which the failure of the
RCMP to investigate or follow-up on complaints constitute a continuation of the
physical assaults perpetrated by Mr. Cooke (Notice: Part 1, paras. 18-19,
and Part 3, paras. 8-11).

[43]        
I note that Hill was applied by the British
Columbia Court of Appeal in Thompson (paras. 25-28). In Thompson,
the Court of Appeal struck the claim of the plaintiff as disclosing no
cause of action. The assertion was that the police negligently investigated his
complaints that his wife was assaulting their children. The court held that the
plaintiff, Mr. Thompson, father of the children who had been assaulted,
was "not within the circle of people the police would reasonably have in
mind as a person potentially harmed by their actions (para. 27)." Hence,
by reasonable implication, the plaintiff submits there is a circle of people
the police would reasonably have in mind as persons potentially harmed by police
actions, namely the direct victims of the crimes being negligently investigated
as in Odhavji, as opposed to those "once removed” as was the plaintiff
in Thompson.

Analysis and Findings Regarding the Plaintiff’s Claim Regarding Negligent
Investigation by the RCMP

[44]        
The RCMP is a public body that governed by Royal Canadian Mounted Police
Act (R.S.C., 1985, c. R-10)(“Act”). The Act stipulates:

18        It is the duty of members who are peace officers,
subject to the orders of the Commissioner,

18(a)    to perform all duties that are assigned to peace
officers in relation to the preservation of the peace, the prevention of crime
and of offences against the laws of Canada and the laws in force in any
province in which they may be employed, and the apprehension of criminals and offenders
and others who may be lawfully taken into custody.

[45]        
The RCMP owes a duty to the public to conduct investigations. This duty
should be discharged impartially with a view of the public good.

[46]        
In certain limited circumstances police have been also found to owe a
private law duty to individuals.

[47]        
I will briefly consider the latter situation first.

[48]        
In Hill, Mr. Hill was wrongfully convicted of robbery and
ultimately acquitted after serving more than 20 months in jail. Mr. Hill
alleged the police had been negligent in their investigation of him. The police
were not found to be negligent with regards to their investigation of Mr. Hill
as a robbery suspect, as their conduct was found to meet the standard of a
reasonable officer in similar circumstances. However, Chief Justice McLachlin,
for the majority, stated:

[3]        I conclude that police are not immune from
liability under the Canadian law of negligence, that the police owe a duty of
care in negligence to suspects being investigated, and that their conduct during
the course of an investigation should be measured against the standard of how a
reasonable officer in like circumstances would have acted. The tort of
negligent investigation exists in Canada, and the trial court and Court of
Appeal were correct to consider the appellant’s action of this basis. The law
of negligence does not demand a perfect investigation. It requires only that
police conducting an investigation act reasonably. When police fail to meet the
standard of reasonableness, they may be accountable through negligence law for
harm resulting to a suspect.

[49]        
Thus, police have been held to owe a private law duty of care to the
suspects of their criminal investigations.

[50]        
Furthermore, in Jane Doe v. Board of Commissioners of Police for the
Municipality of Metropolitan Toronto, (1990) 72 DLR 4^th 580 (“Jane
Doe”), Justice Moldaver, writing for the Ontario Court of Appeal, found
that the police owed a private law duty to warn to victims of a serial rapist:

[18]      The plaintiff
alleges that the defendants knew of the existence of a serial rapist. It was
eminently foreseeable that he would strike again and cause harm to yet another
victim. The allegations therefore support foreseeability of risk.

[19]      The plaintiff
further alleges that by the time she was raped, the defendants knew or ought to
have known that she had become part of a narrow and distinct group of potential
victims, sufficient to support a special relationship of proximity…

[20]      Accepting as I must
the facts as pleaded, I agree with Henry J. that they do support the requisite
knowledge on the part of police sufficient to establish a private law duty of
care. The harm was foreseeable and a special relationship of proximity existed.

[51]        
Jane Doe is often cited as authority for the proposition that where
police know or ought to know that there is a foreseeable risk of harm to a
narrow and distinct group of potential victims, they owe a private law duty of
care to those potential victims. However, I note that in Hill, Chief
Justice McLachlin casts some doubt on the breadth of applicability of Jane
Doe:

[27]      …I note Jane Doe is a lower court decision
and that debate continues over the content and scope of the ratio in that case.

[52]        
These cases stand in contrast to a number of appellate decisions
including Wellington, leave to appeal dismissed at [2011] S.C.C.A. No. 258.

[53]        
In Wellington, Justice Sharpe (with Moldaver J.A. and
Armstrong J.A. concurring) discussed the distinction between public and private
interests:

[44]      There is now a well-established
line of cases standing for the general proposition that public authorities
charged with making decisions in the general public interest, ought to be free
to make those decisions without being subjected to a private law duty of care
to specific members of the general public. Discretionary public duties of this
nature are “not aimed at or geared to the protection of private interests of
specific individuals” and do “not give rise to a private law duty sufficient to
ground an action in negligence”

…

[45]      In my view, the SIU
does not and should not conduct criminal investigations to advance the private
interests of any individual citizen. I agree with the submission…that there
is an inherent tension between the public interest in an impartial and
competent investigation and a private individual’s interest in a desired
outcome of the same investigation which includes seeking to ground a civil
action against the alleged perpetrator. To introduce a private law duty of care
would in my view introduce an element seriously at odds with the fundamental
role of the SIU to investigate allegations of criminal misconduct in the public
interest.

[54]        
Wellington involved a fatal shooting by a police officer that was
allegedly improperly investigated by a Special Investigations Unit (SIU), a
statutory body in Ontario charged with investigating the circumstances of
serious injuries and deaths that may have resulted from the actions of police
officers. The plaintiffs, the family of the deceased and his estate, were
alleging that the police owed them a private law duty to conduct a proper
investigation into the actions of the two officers involved in the incident.

[55]        
In Wellington Justice Sharpe also commented on the case law in
the area of police owing a duty of care to victims:

[52]      In my view, this is
not a case where a trial is required to resolve the duty of care issue. A duty
of care has been excluded by prior decision of this court, the British Columbia
Court of Appeal and numerous trial courts. As stated in Williams, at para. 39,
it has been repeatedly held “that it is appropriate to analyze claims alleging
negligence against public authorities based on the exercise of discretionary
statutory duties at the pleading stage to determine whether there is any
possibility that a duty of care court be found to exist”.

[56]        
According to Sharpe J.A. unlike novel tortious claims where it is
unclear whether the courts will find a new duty of care, a private law duty
owed to victims of crime by a public body including the police, namely the duty
to conduct reasonable investigations, has been addressed by the higher courts
and has not been found to be a cause of action at law. Sharpe J.A. distinguishes
Odhavji on the basis that the claim against the police officers in that
case was for misfeasance in public office, “a tort that requires an element of
deliberate unlawful conduct as well as awareness that the conduct is unlawful
and likely to harm the plaintiff” (Wellington, at paras. 25-28).

[57]        
Similarly, Justice Saunders in Thompson also discussed the proximity
issue in a case where a husband had told the police that his ex-wife was abusing
their children. The police, allegedly, did not conduct a sufficient
investigation. The court, however, struck the husband’s claim for negligent
investigation. Saunders J. A. held that while police have a duty to
investigate, this duty is not owed to private parties. She further stated:

[27]      In my view, the
relationship of Mr. Thompson to the police officers, even on his full
pleadings, is not sufficiently proximate to find a duty of care. Mr. Thompson
was not the subject of the information provided to the police, either as a
person said to be wronged – who were his children, or the person thought to be
the wrongdoer – Ms. Thompson. He was, although the father of the children,
one party removed from the complaint. I consider it is plain and obvious, on
the pleadings, that Mr. Thompson was not within the circle of people the
police would reasonably have in mind as a person potentially harmed by their
actions.

[58]        
In a recent trial decision of this Court, Burnett v. Moir, 2011
BCSC 1469 [Burnett], the plaintiff was assaulted by an unknown assailant
at a night club and sustained a moderately severe brain injury. He alleged that
the police did not do enough in the immediate aftermath of the assault to
identify witnesses and obtain information that may have assisted in determining
who the assailant was. The plaintiff sought to establish that the members of
the Delta Police Force who investigated the incident owed him a private law duty
of care for acts or omissions committed in the exercise of their public
responsibility to preserve the peace and prevent the commission of offences.

[59]        
Mr. Justice Cullen (as he then was) drew a distinction between cases
where a private law duty of care is owed by police and those where it is not:

[405]    The cases in which
police failure to act, or negligent actions in connection with a potential
victim have engaged a duty of care, in Mooney, Jane Doe and Schacht
either involve specific ascertainable threats to specific ascertainable victims
or specific ascertainable threats to a particular class of victim… As noted
by Sharpe J.A. in Wellington v. Ontario, in connection with the Jane
Doe case, the victims were part of a “narrow and distinct group” facing “a
specific threat.”

[60]        
Cullen J. further held it would be speculative whether the failure to
investigate would cause the harm alleged:

[436]    … [T]he
relationship between an investigator and a victim, at least where the
substantive harm has already been caused by a third party, is removed and
indirect. Moreover, the asserted foundation for finding proximity – the
negligent failure to facilitate a civil action against the perpetrator of the
substantial harm – runs directly counter to the public interest in ensuring
that public officials do not perform their duties and functions to serve
private interests.

[437]    In this case, it is
alleged that not enough was done in the immediate aftermath of the offence to
identify witnesses and obtain information which may assist in determining who
the assailant was. That assertion is somewhat speculative, as is the inference
that a more comprehensive initial investigation would lead to a successful
action or result in the recovery of damages.

…

[443]    As I see it, while there
may be particular cases where the evidence justifies finding a proximate
relationship between a police investigator and the victim of an offence being
investigated, the circumstances would need to overcome both the inherently
indirect nature of the relationship, and the critically important precept that
criminal investigations do not serve private interests.

[61]        
In summary, as with the tort of negligence generally, the tort of
negligent investigation requires that not only the relationship be one of sufficient
proximity but also that the damages arising from the alleged negligent
investigation be reasonably foreseeable.

[62]        
In the present case, the plaintiff is asserting that complaints (other
than his) made against Mr. Cooke “were not investigated or, alternatively,
not investigated appropriately or thoroughly” and this negligent investigation
“constituted a continuation or aggravation of the assaults.”

[63]        
I find that the plaintiff is not sufficiently proximate in relation to
the RCMP to give rise to a private law duty owed to him by the RCMP in
negligent investigation. It is not reasonably foreseeable that the RCMP’s
negligent investigation of other complaints against Mr. Cooke would cause
the type of harm alleged by the plaintiff. Without facts pleaded as to the
nature of those other complaints there is no basis upon which to find a
proximate relationship existed between the plaintiff and the RCMP. This is particularly
so as the plaintiff made no complaints to the RCMP for ten years after the alleged
sexual assaults of him ceased. His claim against Mr. Cooke was not known
to the RCMP. Therefore, during the most relevant time period, the plaintiff was
not within a discrete class of individuals reasonably known to be affected by
the alleged failure to investigate by the RCMP.

[64]        
Not falling within the failure to warn exception, I find that as an
alleged victim of a crime, based on Wellington, the RCMP do no owe a
private law duty of care to the plaintiff.

[65]        
The plaintiff is also alleging that the RCMP owed him a private law duty
to conduct an investigation of other complainants as to the conduct of Mr. Cook.
In this regard, his position is similar to that of the father in Thompson insofar
as he is not sufficiently proximate to found a duty of care.

[66]        
In addition, as stated in Burnett, I find that the plaintiff’s
claim of negligent investigation is too speculative. There is nothing in the
pleadings to support a finding that, but for a negligent investigation, the
plaintiff would have not been harmed. Here the connection between the
investigation and the harm is too speculative to support a cause of action.
Likewise, the plaintiff’s claim that the negligent investigation of Mr. Cooke
aggravated or perpetuated the harm to him is also too speculative.

[67]        
 Counsel for the plaintiff submits that the plaintiff as an alleged
victim of Mr. Cooke is clearly “within the circle of people the police
would reasonably have in mind as a person potentially harmed by their actions”
as articulated by Saunders J.A. in Thompson. The weight of
authority, in particular Wellington, runs counter to that proposition.

[68]        
Therefore, absent limited exceptions, the police, including the RCMP, do
not generally owe a private duty of care to victims or potential victims with
regards to their investigations. They owe a duty to the public to carry out
proper criminal investigations. I do not see that duty abrogated in any way
because the alleged wrongdoer in this case is a member of the RCMP.

[69]        
While the motion to strike is a tool that should be used carefully so as
not to prematurely destroy legitimate claims, pleadings should be struck if
they reveal no cause of action.

[70]        
In this case, I conclude that the pleadings in the Notice with regards
to negligent investigation of Mr. Cooke by the RCMP do not reveal a cause
of action for the plaintiff, and are therefore struck.

Issue No. 2:
Do those portions of the plaintiff’s Notice relating to a breach of fiduciary
duty owed by the RCMP to the plaintiff disclose a reasonable cause of action?

Portions
of the Notice Relevant to Breach of Fiduciary Duty

[71]        
The plaintiff pleads that Mr. Cooke personally, the Hockey
Association and the RCMP each owe him a fiduciary duty and this duty was
breached. The plaintiff sets out his claim in Part 3 of the Notice.

1.         The Plaintiff says that on the various occasions
the assaults upon him were committed by the Defendant, Donald Cooke, the said
Donald Cooke was reposed with authority, command, responsibilities, and control
over the Plaintiff tantamount to parental control and authority. This authority
was conferred by his status as an acting Assistant Coach employed by the
Abbotsford Hockey Association engaged in duties of his office. The Plaintiff
says that in the circumstances, the Defendant Donald Cooke, and his employer, the
Abbotsford Minor Hockey Association, were in a fiduciary relationship with the
Plaintiff.

2.         The Plaintiff says that the Defendant, Donald
Cooke, utilized his status as an assistant coach with the Abbotsford Minor
Hockey Association, and the authority, command, responsibilities and control
over the Plaintiff conferred by that status to groom, intimidate, influence or
otherwise compel the Plaintiff into submission to and/or compliance with the
assaults committed upon him.

3.         The Plaintiff says that the Defendant, the
Abbotsford Minor Hockey Association, failed to supervise and protect against
the intentional and unlawful acts of the Defendant, Donald Cooke, who was at
all material times, an employee and/or agent of the Defendant, the Abbotsford
Minor Hockey Association and as such the Defendant, the Abbotsford Minor Hockey
Association, was in breach of its fiduciary duty to the Plaintiff.

4.         The Plaintiff says that on the occasions of the
sexual assaults, the Defendant Donald Cooke, committed many of these acts while
he was on duty, in uniform, and/or acting in his capacity as an officer or
constable of the RCMP. The Plaintiff says that the Defendant Donald Cooke,
while on duty, in uniform, acting in his capacity as an officer or constable of
the RCMP, or while utilizing his status as such to groom or influence the
Plaintiff in furtherance of his intentions to sexually assault the Plaintiff,
was in a fiduciary relationship with the Plaintiff.

5.         The Plaintiff says that the Defendant, Donald
Cooke, utilized his status as a member of the RCMP, and the authority, command,
responsibilities and control over the Plaintiff conferred by that status to
groom, intimidate, influence, or otherwise compel the Plaintiff into submission
to and/or compliance with the assaults committed upon him.

6.         The Plaintiff says that the Defendant, The RCMP,
failed to supervise and protect against the intentional and unlawful acts of
the Defendant, Donald Cooke, who was at all material times, an employee and/or
agent of the Defendant, the RCMP and as such the Defendant, the RCMP, was in
breach of its fiduciary duty to the Plaintiff.

…

15.       he Plaintiff says that the failures or omissions of
the R.C.M.P. aforesaid further constitute a breach of the fiduciary duty of the
R.C.M.P. to the Plaintiff.

Position
of the Attorney General

[72]        
It is the position of counsel for the Attorney General
that the plaintiff’s pleadings in paras. 6 and 15 of Part 3 of the
plaintiff’s Notice should be struck out for yielding no cause of action.

[73]        
Counsel for the Attorney General submits that the special
characteristics of governmental responsibilities and functions mean that public
authorities will owe fiduciary duties only in limited and special circumstances:
Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 [Elder
Advocates], at para. 37.

[74]        
Where the exercise of a government power or discretion
is at issue, the requirement of an undertaking to act in the alleged
beneficiary’s interest will typically be lacking. Compelling the RCMP (the
alleged fiduciary) to put the best interests of the plaintiff (the alleged
beneficiary) before others is inherently at odds with the RCMP’s duty to act in
the best interests of society as a whole, and its obligation to spread limited
resources among competing groups with equally valid claims for assistance: Elder
Advocates, at paras. 42 and 44.

[75]        
The relationship between the RCMP and the plaintiff
is not similar to the traditional categories of fiduciary relationship. A
strong correspondence with one of the traditional categories of fiduciary
relationship (executor-beneficiary, agent-principal, etc.) is a precondition to
finding an implied fiduciary duty on the government: Elder Advocates, at
para. 47.

[76]        
Further, courts have held that no fiduciary duty
exists between police and individual citizens, including suspects and victims: R.
v. Mosquito, 2005 SKCA 31; Waudby v. McLaren, [2003]
O.J. No. 5302.

[77]        
In the present case, the Notice contains nothing
more than the bald assertion that a fiduciary relationship exists and that it
was breached. The Supreme Court of Canada has clearly stated that claims
against the government that fail to satisfy the legal requirements of a fiduciary
duty should not be allowed to proceed in the speculative hope that they may
ultimately succeed. Plaintiffs suing for breach of fiduciary duty must be
prepared to have their claims tested at the pleadings stage, as with any cause
of action: Elder Advocates, at para. 54.

Position of the Plaintiff

[78]        
Counsel for the plaintiff submits that the
special circumstances and relationship that existed between Mr. Cooke and
the plaintiff renders Mr. Cooke a fiduciary in the circumstances of the
present case: Elder Advocates, paras. 22-54.

[79]        
The plaintiff submits that the relationship of
the plaintiff to Mr. Cooke, as a juvenile under the supervision of his
hockey coach, transforms their relationship from that of police officer to a
member of the general public, to that of guardian/ward or parent/child:
Elder Advocates, at para. 33. Although not specifically pleaded, the
plaintiff is asserting that it is the combination of both roles – that of
hockey coach and RCMP officer – that gives rise to a fiduciary relationship in
this case.

[80]        
The factors unique to the relationship between Mr. Cooke
and the plaintiff are important in an analysis of a fiduciary duty: Galambos
v. Perez, 2009 SCC 48 [Galambos], at para. 68. The plaintiff
does not suggest that the police are always in a fiduciary relationship with
members of the public. Rather, counsel submits that the unique circumstances of
this relationship give rise to Mr Cooke’s fiduciary duty to the plaintiff.

[81]        
Fiduciary law focuses on those particular
relationships in which one party is given a discretionary power to affect the
legal or vital practical interests of the other: Galambos, at para. 70.
As such, “power dependency” relationships are not in a special category of
fiduciary relationships and the law is clear that fiduciary duties will only be
imposed on those who have expressly or impliedly undertaken them: Galambos,
at para. 71. It is suggested that the implied undertaking by the fiduciary
to act in the best interests of the other party can be clearly established in
the relationship of police officer/hockey coach and child.

[82]        
A specific instance of the existence of the
fiduciary duty in the context of a “power dependency” relationship is
illustrated in Hodgkinson v. Simms, [1994] 3 S.C.R. 377 [Hodgkinson],
at p. 411:

More generally, relationships characterized
by a unilateral discretion, such as the trustee-beneficiary relationship, are
properly understood as simply as species of a broader family of relationships
that may be termed “power-dependency” relationships. I employed this notion,
developed in an article by Professor Coleman, to capture the dynamic of abuse
in Norberg v. Wynrib, supra, at p. 255. Norberg concerned an
aging physician who extorted sexual favours from a young female patient in
exchange for feeding an addiction she had previously developed to the
pain-killer Fiorinal. The difficulty in Norberg was that the sexual
contact between the doctor and patient had the appearance of consent. However,
when the pernicious effects of the situational power imbalance were considered,
it was clear that true consent was absent. While the concept of a
“power-dependency” relationship was there applied to an instance of sexual
assault, in my view the concept accurately describes any situation where one
party, by statute, agreement, a particular course of conduct, or by unilateral
undertaking, gains a position of overriding power or influence over another
party. Because of the particular context in which the relationship between the
plaintiff and the doctor arose in that case, I found it preferable to deal with
the case without regard to whether or not a fiduciary relationship arose.
However, my colleague Justice McLachlin did dispose of the claim on the basis
of the fiduciary duty, and whatever may be said of the peculiar situation in Norberg,
I have no doubt that had the situation there arisen in the ordinary
doctor-patient relationship, it would have given rise to fiduciary obligations:
see, for example, McInerney v. MacDonald, [1992] 2 S.C.R. 138.

[83]        
The plaintiff submits that the Court must
examine the particular relationship here and recognize this unique relationship
as a fiduciary one. In Hodgkinson, LaForest J. (for the majority
as to the existence of a fiduciary duty) stated at p. 413:

In summary, the precise legal or equitable
duties the law will enforce in any given relationship are tailored to the legal
and practical incidents of a particular relationship. To repeat a phrase used
by Lord Scarman, "[t]here is no substitute in this branch of the law for a
meticulous examination of the facts"; see National Westminster Bank plc
v Morgan, [1985] 1 All E.R. 821 (H.L.) at p. 831.

[84]        
The plaintiff submits that his relationship while
he was a juvenile with Mr. Cooke as both hockey coach and a member of the
RCMP is characteristic of a fiduciary relationship. Counsel submits that from a
subjective and objective point of view, the plaintiff was vulnerable and
powerless as compared to Mr. Cooke. As an adult and both a hockey coach
and a member of the RCMP, Mr. Cooke wielded discretion and power over the
plaintiff, and this unilateral power or discretion gave Mr. Cooke the
ability to influence the plaintiff’s legal or practical interests. These facts entitle
the Court to assume the existence of this power imbalance in their relationship
for purposes of evaluating the pleadings. As such, the plaintiff describes a
"power dependency" relationship that is capable of founding a
fiduciary duty on the part of the RCMP in relation to the plaintiff.

[85]        
Therefore, the plaintiff submits that the facts
as asserted in the Notice establish a unique relationship and potential
“power-dependency” existed between the plaintiff and Mr. Cooke in his
capacity as a police officer such that the Court ought to permit the claim for
breach of fiduciary duty to proceed against the RCMP as Mr. Cooke’s
employer.

[86]        
The plaintiff does not make any claims as to the
nature of the relationship between the RCMP defendant and the plaintiff which
would give rise to a fiduciary duty.

Analysis and Findings
Regarding the Plaintiff’s Claim of Breach of Fiduciary Duty by the RCMP

[87]        
The test for establishing an ad hoc fiduciary
duty is clearly stated by Chief Justice McLachlin in Elder Advocates:

[36]      For an ad hoc fiduciary
duty to arise, the plaintiff must show, not only vulnerability arising
from the relationship, but also: (1) an undertaking by
the alleged fiduciary to act in the best interests of the alleged beneficiary
or beneficiaries; (2) a defined person or class of persons vulnerable
to a fiduciary’s control (the beneficiary or beneficiaries); and (3) a legal or
substantial practical interest of the beneficiary or beneficiaries that stands
to be adversely affected by the alleged fiduciary’s exercise of discretion or
control.

[88]        
The plaintiff must first establish that the said
fiduciary has undertaken to act in the best interest of the beneficiary.

[42] First, the requirement of
an undertaking to act in the alleged beneficiary’s interest will typically be
lacking where what is at issue is the exercise of a government power or
discretion

[43] The duty is one of utmost
loyalty to the beneficiary. As Finn states, the fiduciary principle’s function
“is not to mediate between interests. It is to secure the paramountcy of
one side’s interests . . . . The beneficiary’s interests are to be
protected. This is achieved through a regime designed to secure loyal service
of those interests” (P. D. Finn, “The Fiduciary Principle”, in T. G. Youdan,
ed., Equity, Fiduciaries and Trusts (1989), 1, at p. 27
(underlining added); see also Hodgkinson, at p. 468, per
Sopinka J. and McLachlin J. (as she then was), dissenting).

[44] Compelling a fiduciary
to put the best interests of the beneficiary before their own is thus essential
to the relationship. Imposing such a burden on the Crown is inherently at odds
with its duty to act in the best interests of society as a whole, and its
obligation to spread limited resources among competing groups with equally
valid claims to its assistance: Sagharian (Litigation Guardian of) v.
Ontario (Minister of Education), 2008 ONCA 411, 172 C.R.R. (2d) 105, at paras. 47-49.
The circumstances in which this will occur are few. The Crown’s broad
responsibility to act in the public interest means that situations where it is
shown to owe a duty of loyalty to a particular person or group will be
rare:  see Harris v. Canada, 2001 FCT 1408, [2002] 2 F.C. 484, at para. 178.

[Emphasis
added.]

[89]        
The pleadings do not disclose that the RCMP
undertook to act in the best interest of the plaintiff. The RCMP has a duty to act
in the public interest, which often includes balancing competing private
interests. In the circumstances of this case as pleaded, the RCMP cannot properly
be held to have a private law fiduciary duty to the plaintiff.

[90]        
The RCMP did offer a “ride-a-long program” to
some of the alleged complainants. The plaintiff also claims to have
participated in ride-a-longs with Mr. Cooke. If the RCMP had held out Mr. Cooke
as a guardian of the plaintiff, a minor, on a ride-along, a fiduciary duty may
arise. However, there are no facts pleaded to support that proposition.

[91]        
To further his claim of a fiduciary relationship
the plaintiff must then establish that his vulnerability arose from his
relationship with the RCMP. As stated by Justice Cromwell in Galambos:

[67]      An important focus of fiduciary law is the
protection of one party against abuse of power by another in certain types of
relationships or in particular circumstances. However, to assert that the
protection of the vulnerable is the role of fiduciary law puts the matter too
broadly. The law seeks to protect the vulnerable in many contexts and through
many different doctrines. As La Forest J. noted in Hodgkinson, at
p. 406: “[W]hereas undue influence focuses on the sufficiency of consent and
unconscionability looks at the reasonableness of a given transaction, the
fiduciary principle monitors the abuse of a loyalty reposed” (emphasis
added). This brief sentence makes two important points which help sharpen the
focus on the role of fiduciary law.

[68]      The first is that fiduciary law is more concerned
with the position of the parties that results from the relationship
which gives rise to the fiduciary duty than with the respective positions of
the parties before they enter into the relationship. La Forest J. in Hodgkinson,
at p. 406, made this clear by approving these words of Professor Ernest J.
Weinrib: “It cannot be the sine qua non of a fiduciary obligation that
the parties have disparate bargaining strength. . . . In contrast to notions of
conscionability, the fiduciary relation looks to the relative position of the
parties that results from the agreement rather than the relative position that
precedes the agreement” (“The Fiduciary Obligation” (1975), 25 U.T.L.J. 1,
at p. 6). Thus, while vulnerability in the broad sense resulting from
factors external to the relationship is a relevant consideration, a more
important one is the extent to which vulnerability arises from the
relationship: Hodgkinson, at p. 406.

[92]        
The plaintiff has pleaded that he was in a vulnerable position and was
groomed by Mr. Cooke. In Galambos, Cromwell J. clearly refuted the
proposition that simple vulnerability or “power-dependency” created a fiduciary
duty.

[71]      I return to the Court of Appeal’s holding that a
fiduciary duty may arise in “power-dependency” relationships without any
express or implied undertaking by the fiduciary to act in the best interests of
the other party. I respectfully disagree with this approach, for two reasons:
“power-dependency” relationships are not a special category of fiduciary
relationships and the law is, in my view, clear that fiduciary duties will only
be imposed on those who have expressly or impliedly undertaken them.

[93]        
The plaintiff’s relationship of vulnerability existed primarily between Mr. Cooke
and the plaintiff. It cannot be said that the RCMP expressly or impliedly
undertook a fiduciary relationship with the plaintiff and indeed the plaintiff
does not plead that he was in a power-dependent relationship with the RCMP.

[94]        
The third element of the fiduciary relationship
is the discretionary power the fiduciary has over the beneficiary. In trust
relationships, this discretionary power is in relation to property.

[95]        
The RCMP cannot be found to have discretionary
power over the plaintiff. The RCMP has a public function that does not involve
private discretionary power relationships with individual members of the public.

[96]        
Perhaps while acting as guardian during a ride-a-long
program the RCMP undertook to take care of the plaintiff accompanied by Mr. Cooke.
The ride-a-longs may create a guardian-juvenile relationship where the RCMP had
discretionary power over the plaintiff. However, the pleadings do not disclose
the nature of these ride-a-longs, available supervision, waiver of liabilities
or other material facts necessary to establish this relationship.

[97]        
In Elders Advocates, Chief Justice
McLachlin further discusses applying fiduciary duties to government agencies.

[25]      This case thus raises the question
of when governments, as opposed to individuals, may be bound by a fiduciary
duty. Fiduciary duty originated as a private law doctrine. In the past, state
actors have been held to be under a fiduciary duty in limited circumstances,
namely, in discharging the Crown’s special responsibility towards Aboriginal
peoples and where the Crown is acting in a private capacity, as in its role as
the public guardian and trustee. This claim does not fall within either of
these situations.

[54] It thus emerges that a
rigorous application of the general requirements for fiduciary duty will of
necessity limit the range of cases in which a fiduciary duty on the government
is found. Claims against the government that fail to satisfy the legal
requirements of a fiduciary duty should not be allowed to proceed in the
speculative hope that they may ultimately succeed. The truism that the
categories of fiduciary duty are not closed (as Dickson J. noted in Guerin,
at p. 384) does not justify allowing hopeless claims to proceed to trial:
see M. V. Ellis, Fiduciary Duties in Canada (loose-leaf), at pp. 19-3
and 19-24.10. Plaintiffs suing for breach of fiduciary duty must be prepared to
have their claims tested at the pleadings stage, as for any cause of action.

[98]        
This is a case where a private law fiduciary
duty has been alleged to exist between the plaintiff and the RCMP, but the
pleadings do not disclose the requisite elements of this duty as outlined in Elders
Advocates. As such I would strike para. 6 and 15 of Part 3 of the
plaintiff’s Notice.

[99]        
I conclude by noting that in the plaintiff’s Notice
he states in Part 3:

18.       The Defendant, the Attorney
General of Canada is vicariously and statutorily liable for the action of the
RCMP and its members and commissioned officers by operation of the Crown Liability
Act, RSC 1985, C.50 as amended.

[100]     The Attorney General did not move to strike this claim.

[101]     The plaintiff alleges that at all material times, Mr. Cooke was
employed by the RCMP. Further, the plaintiff alleges Mr. Cooke was on
duty, in uniform and acting in his capacity as an officer or constable of the
RCMP during some of the sexual assaults.

[102]     An employer can be vicariously liable for the intentional torts of
their employee during the course of employment if the wrongful act is
sufficiently related to conduct authorized by the employer: Bazley v.
Currie [1999] 2 S.C.R. 534, para. 10.

[103]      While I have found the RCMP is not in a direct fiduciary
relationship with the plaintiff, Mr. Cooke may have been in a fiduciary
relationship with the plaintiff. Further, the Hockey Association and the RCMP
might be jointly liable for breaches by Mr. Cooke of his fiduciary duty (Blackwater
v. Plint 2005 SCC 58 para. 65).

Conclusion

[104]     For these reasons, I strike out those portions of the plaintiff’s Notice
set out herein that relate to the alleged negligent investigation of Mr. Cooke
by the RCMP and the claim for breach of a fiduciary duty owed by the RCMP to
the plaintiff.

[105]     The Attorney General is entitled to costs at Scale B payable by the
plaintiff in any event of the cause with regards to this application.

“The Honourable Madam Justice Arnold-Bailey”