IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130402

Docket: S075592

Registry:
Vancouver

Between:

David Fletcher

Plaintiff

And

Her Majesty the
Queen in Right of the Province of British Columbia

as represented by
The Minister of Public Safety and Solicitor General,

Dianna Barone,
Angelo Pupo and David Michael Rawlick

Defendants

Before:
Master Muir

Reasons for Judgment

[1]            
There were two applications scheduled before me. The first, an
application to strike the claim against the individual defendants, is adjourned
generally by consent.

[2]            
The second is an application to amend the writ and amended statement of claim
to the current form of a notice of civil claim, to delete the allegations of Charter
breach and to “rectify any drafting deficiencies in the original pleading.”

[3]            
The defendants consented to the deletion of the allegations of Charter
breach without condition.

[4]            
The defendants offered to consent to the other amendments on the
following conditions:

a.     the
plaintiff further revise his amended pleadings to provide better particulars in
both Part 1 and Part 3 relating to his claim that the Individual Defendants
acted in bad faith;

b.     the
amendments be allowed without prejudice to the defendants’ rights to plead and
argue a limitations defence to the bad faith allegations;

c.      the
defendants have a reasonable opportunity to file a Response to Civil Claim
after the amended pleadings are filed and served; and

d.    
examinations for discovery in the action be adjourned until after the
Response to Civil Claim and the deadline for filing a Reply has passed.

[5]            
The following is a summary of the facts as pleaded:

a.    The plaintiff was arrested and
jailed by the Vancouver Police Department in August 2005.

b.    The plaintiff was visibly
intoxicated and struggling to maintain consciousness.

c.    He was detained in a semi-conscious
condition in a hold cell with his wrists handcuffed behind his back.

d.    There were other prisoners in the
hold cell.

e.    Mr. Nelson, who it is alleged was
known to be violent, was placed in the same cell.

f.    Mr. Nelson yelled for the
corrections officers to remove the plaintiff from the cell, but they did not do
so.

g.    Mr. Nelson proceeded to assault
the plaintiff, who suffered serious injury as a result.

h.    One of the guards saw the assault
and told Mr. Nelson to stop.

i.     That guard did not intervene
until another guard arrived.

[6]            
The test for amendment of pleadings is not in dispute. It was considered
and summarized by Mr. Justice N. Smith in Shaw Cablesystems Ltd. v. Concord
Pacific Group Inc., 2009 BCSC 203, as follows:

[8] Rule 24(1) allows a party to amend a
pleading at any time with leave of the court. Applications for leave to amend
should be considered on the same basis as applications to strike existing
pleadings. In Victoria Grey Metro Trust Company v. Fort Gary Trust
Company 1982 CanLII 227 (BC SC),
(1989), 30 B.C.L.R. (2d) 45 at page 47 (S.C.) McLachlin J. (as she then was)
said:

…it seems to me obvious that the
court will not give its sanction to amendments which violate the rules which
govern pleadings. These include the requirements relating to conciseness (R.
19(1)); material facts (R. 19(1)); particulars (R. 19(11)); and the prohibition
against pleadings which disclose no reasonable claim or are otherwise
scandalous, frivolous or vexatious (R. 19(24)). With respect to the latter, it
may be noted that it is only in the clearest cases that a pleading will be
struck out as disclosing no reasonable claim; where there is doubt on either
the facts or law, the matter should be allowed to proceed for determination at
trial… While these cases deal with striking out claims already pleaded,
consistency demands that the same considerations apply to the question of
amendment to permit new claims.

…

[9] Rule 19(24) reads:

(24) At any stage of a proceeding
the court may order to be struck out or amended the whole or any part of an
endorsement, pleading, petition or other documentation on the ground that

 (a) it discloses no
reasonable claim or defence as the case             may be,

 (b) it is unnecessary,
scandalous, frivolous or vexatious,

 (c) it may prejudice,
embarrass or delay the fair trial or hearing             or the proceeding, or

 (d) it is otherwise an
abuse of the process of the court,

And the court may grant judgment or
other the proceeding to be stayed or dismissed and may order the costs of the
application to be paid as special costs.

…

[12] In Citizens for Foreign Aid
Reform Inc. v. Canadian Jewish Congress, [1999] B.C.J. No. 2160
(B.C.S.C.) at para. 34 Romilly J. said:

…as long as the pleadings disclose a triable issue, either
as it exists, or as it may be amended, then the issue should go to trial. The
mere fact that the case is weak or not likely to succeed is no ground for
striking it out under the provisions of Rule 19(24).

[7]            
Although that decision was regarding s. 19(24) of the old Rules of Court
the present rule, Supreme Court Civil Rule 9-5(1), is the same.

[8]            
The defendants also referred to the decision in Victoria Grey Metro
Trust Co., referenced in the quote above, in support of the proposition
that useless amendments will not be allowed. The court held:

[2] … These provisions arguably support a
generous approach to the question of amendments. However, the court will not
allow useless amendments: …

[Emphasis added]

[9]            
In both the original and the amended statement of claim in this matter
the plaintiff has set out a legal section with respect to all defendants as
follows:

NEGLIGENCE

19.       The
Defendants, as the Plaintiff’s jailers, owed the Plaintiff a duty of care to
protect him from foreseeable risks while he was in their custody.

20.       The
Defendants acted negligently and in breach of their said duty of care to the
Plaintiff in that:

a)         they
carelessly detained the Plaintiff in the Cell in a state of semi-consciousness
with no shirt and with his wrists in handcuffs behind his back without regard
to the foreseeable risks that he would injure himself, or that he would not be
able to defend himself from attack;

b)         they
carelessly detained the Plaintiff in the Cell containing other violent inmates
with his hands cuffed behind his back without regard to the likelihood that he
would not be able to defend himself in the event of an assault by another
inmate;

c)         they
carelessly failed to respond to Mr. Nelson’s request that the Plaintiff be
removed from the Cell and they failed to appreciate that Mr. Nelson was
becoming increasingly aggressive and abusive towards the Plaintiff; and

d)         they carelessly failed to
oversee the conduct of the inmates held in the Cell with the Plaintiff, giving
the other inmates an opportunity to assault and batter the Plaintiff without
interruption.

[10]        
In their statement of defence, the defendants plead and rely on, inter
alia, s. 5 of the Correction Act, SBC 2004, ch. 46, which
provides:

Protection of
officials in duties

5 (1) No action for damages lies or may be brought
against a person holding an appointment under section 2 (1) (a) or (b) because
of anything done or omitted

(a) in the performance or intended performance of a duty
under this Act, or

(b) in the exercise or intended exercise of a power under
this Act

unless the thing was done or omitted in bad faith.

(2) Subsection (1) does not
absolve the government from vicarious liability for an act or omission for
which it would be vicariously liable if this section were not in force.

[11]        
In the proposed amended notice of civil claim, the plaintiff seeks to claim
as follows:

Part 3:  LEGAL BASIS

NEGLIGENCE

19.       The Minister
of Public Safety and the Individual Defendants, as the Plaintiff’s jailers,
owed the Plaintiff a duty of care to protect him from foreseeable risks while
he was in their custody.

20.       The Individual
Defendants acted negligently and in breach of their said duty of care to
the Plaintiff in that:

a)         they
carelessly and recklessly detained the Plaintiff in the Cell in a state
of semi-consciousness with no shirt and with his wrists in handcuffs behind his
back, inexplicably and without regard to the foreseeable risks that he
would injure himself, or that he would not be able to defend himself from
attack;

b)         they
carelessly and recklessly detained the Plaintiff in the Cell containing
other violent inmates with his hands cuffed behind his back, inexplicably
and without regard to the likelihood that he would not be able to defend
himself in the event of an assault by another inmate;

c)         they
carelessly and recklessly failed to respond to Mr. Nelson’s request that
the Plaintiff be removed from the Cell and they failed, without explanation
to appreciate that Mr. Nelson was becoming increasingly aggressive and abusive
towards the Plaintiff; and

d)         they carelessly and
recklessly failed to oversee the conduct of the inmates held in the Cell
with the Plaintiff, giving the other inmates an opportunity to assault and
batter the Plaintiff without interruption.

[12]        
The defendants advance three arguments:

a.   The facts as originally pleaded
cannot found a claim of bad faith and hence there is no proper claim against
the individual defendants as the Correction Act indemnity protects them.
Further, as the acts allegedly occurred in 2005, the defendants say such an
action is barred as the limitation has run and therefore the notice of civil claim
cannot be amended to include a claim in bad faith.

b.   In the alternative, if the facts
as originally pleaded do support a claim in bad faith, then the amendments to
para. 20, which provide that the individual defendants were reckless and that
their actions were inexplicable and without explanation, are useless and should
not be allowed.

c.    The amended notice of civil claim
is inadequate in that it does not comply with the new rules, particularly the
requirement in Rule 3-1(2)(c) to set out “a concise summary of the legal basis
for the relief sought”. The plaintiff is required to plead the legal conclusion
of bad faith.

Bad Faith

[13]        
The defendants argue that the original pleading was not sufficient to
found a claim based on bad faith, as would be required to support an action
against the individual defendants.

[14]        
They say that the facts as pleaded only go to the negligence of the
defendants and would not support a finding of bad faith, which requires intent.
They point to the heading in the legal section of the original and amended
statements of claim, which defines the claim as “Negligence”, in support of
their position.

[15]        
Our Court of Appeal peripherally considered these two causes of action
in Cooper v. British Columbia (Registrar of Mortgage Brokers), [2000]
B.C.J. No. 426 (“Cooper”), and made a clear distinction between
negligence and bad faith:

"Bad Faith"

56  It will be recalled that s. 20 of the [Mortgage
Brokers Act, R.S.B.C. 1996, c. 313] provides that the Registrar is not liable
for anything done in "intended or supposed pursuance" of the Act
"unless it was done in bad faith." Having found that the Registrar
owed no duty of care in negligence to the plaintiff, I need not consider s. 20
in connection with that cause of action. However, it will be recalled that the
plaintiff also pleaded that Mr. Hobart had not acted in good faith or was
"reckless and grossly negligent" in failing to suspend Eron’s
registration earlier than he did. …

57  If the plaintiff
did in fact intend to confine herself to allegations of negligence in this case,
nothing remains to be tried. Certainly there are no allegations of fact in her
pleadings that substantiate an intentional tort. If on the other hand the
plaintiff did intend to allege a wrong other than negligence on Mr. Hobart’s
part, she should have an opportunity to amend her pleadings accordingly. In
considering such a course, the plaintiff would have to consider carefully the
risk of an award of special costs should the action fail. On the substantive
level, she would also have to be aware that the leading authorities in the
United Kingdom, Australia and New Zealand (all discussed in Three Rivers D.C.)
require proof that the defendant either intended to injure the plaintiff
("targeted malice") or that the defendant had actual knowledge (as
opposed to foreseeability) both that his acts were unlawful and that actual
injury would result; and that the plaintiff did suffer injury as a result. In
other words, if cases such as Three Rivers D.C. remain applicable in Canada,
the plaintiff would have to show "deliberate and dishonest abuse of
power". (Three Rivers D.C., at 67)

[16]        
The plaintiff submits that the Cooper case and the defendants’
position are based on a narrow view of the meaning of bad faith. He submits
that both the original and amended statements of claim plead sufficient
material facts to support a legal finding of bad faith under a more expanded
definition. Further, he correctly submits that he is not circumscribed by the
plea of negligence in his original and amended statements of claim, as, under the
old rules, he was entitled to argue any cause of action that was supported by
the material facts pleaded without specifically setting out the legal basis in
his pleadings.

[17]        
The plaintiff relies on the decision of the Ontario Superior Court of
Justice in Sparks v. Ontario, 2010 ONSC 4234 (“Sparks”). That
case involved a very similar situation. There the court held:

[14] The determination whether the amended
statement of claim discloses a reasonable cause of action revolves around
whether sufficient facts are pleaded to establish bad faith. That in turn
depends on the interpretation of what constitutes bad faith. The path charted
by the courts in grappling with how to define bad faith is not a smooth one.

[15] The moving defendants submit bad faith
requires the element of intent. They cite case law to support the proposition
that where good faith immunity is relied upon negligence in itself is not a
ground for liability. Bad faith requires intent and hence more than negligent
conduct.

…

[18] The plaintiff submits the case law
cited by the moving defendants puts forward the classical view of bad faith
which he says has been superseded by later decisions of the Supreme Court of
Canada. LeBel, J., for the Supreme Court, looked at the interpretation of “good
faith” in the context of a statutory immunity clause in the regulations that
govern lawyers in Québec. The plaintiff in that case brought an action for
damages against the employees of the Barreau du Québec, the regulatory body in
that province, for failing to protect the public. The court enlarged on the
concept of bad faith as follows:

These difficulties nevertheless
show that the concept of bad faith can and must be given a broader meaning that
encompasses serious carelessness or recklessness. Bad faith certainly includes
intentional fault, a classic example of which is found in the conduct of the
Attorney General of Québec that was examined in Roncarelli v. Duplessis,
1959 CanLII 50 (SCC), [1959] S.C.R. 121.
However, recklessness implies a fundamental breakdown of orderly exercise of
authority to the point that absence of good faith can be deduced and bad faith
presumed. The act, in terms of how it is performed, is then inexplicable and
incomprehensible, to the point that it can be regarded as an actual abuse of
power having regard to the purposes for which it is meant to be exercised.

[Finney v. Barreau du Québec,2004 SCC 36 (CanLII), [2004] 2 S.C.R.; 17,
2004 S.C.C. 36 (S.C.C.) at para. 39].

…

[23] I however agree with the plaintiff’s
position that the principle enunciated by the Supreme Court, though developed
under Québec civil law, is capable of being incorporated by analogy into the
context of the law in common law jurisdictions.

…

[24] Applying the newer concept of bad
faith I therefore conclude that whether a reasonable cause of action in bad
faith is disclosed should be governed by the following principles:

a. reckless conduct can amount to
bad faith;

b. bad faith can be inferred by
inexplicable conduct;

c. bad faith can be presumed from a
fundamental breakdown of the orderly exercise of authority;

d. where a victim is unable to
present direct evidence of bad faith, no more is required than the introduction
of facts that amount to circumstantial evidence of bad faith.

[25] I find facts amounting to inexplicable
and/or reckless conduct by the moving defendants are sufficiently
particularized at paragraphs 13-27 of the amended statement of claim. These are
summarized as follows:

a. the moving defendants knew
Flowers was a dangerous criminal;

b. they knew that Flowers had
threatened the plaintiff;

c. they knew that the plaintiff was
likely to be the subject of personal violence at the hands of Flowers;

d. notwithstanding this knowledge,
the moving defendants placed the plaintiff in the same cell block as Flowers
rather than separating the two inmates;

e. the moving defendants allowed
Flowers and the plaintiff to both be released to a section or area of East
Detention where security cameras, which were meant to protect the safety of
inmates, were either not present or not functioning;

f. they failed to ensure the
presence of corrections officers or other staff to maintain and protect the
safety of inmates in the area where the assault occurred; and

g. the moving defendants failed to
respond or intervene when the assault occurred.

[26] I find the
amended statement of claim sufficiently pleads facts that if taken as true
allow a reasonable inference that the plaintiff’s injuries resulted from the
moving defendants’ reckless and inexplicable failure to provide protective
safeguards against a known violent and dangerous inmate and to ensure
functioning cameras and the presence of corrections officers for security and
protection in the area of the incident.

[18]        
Thus, the court in Sparks concluded that intent was not a
required element of bad faith. The facts as pleaded by the plaintiff here are
effectively the same as those pleaded in Sparks. At this point, where we
are dealing only with the facts as pleaded and whether they make out an
arguable case, it is my view that the plaintiff is correct. Based on the
analysis in Sparks the facts pleaded here are sufficient to found an
arguable claim in bad faith. They allow a reasonable inference that the
plaintiff was injured because of a careless/reckless and inexplicable failure
to protect him from Mr. Nelson in the circumstances. It is not for
determination at this time whether that is a strong or weak case or whether
that definition or concept of bad faith is sufficient to overcome the indemnity
of s. 5 of the Corrections Act. That will be a matter for trial.

Limitation

[19]        
As I have found that the facts as pleaded are sufficient to found a
claim of bad faith, the limitation period with respect to the claim as advanced
has not run.

Useless Amendments

[20]        
The defendants argue that if the claim as originally pleaded is
sufficient to found a claim of bad faith then the amendments sought, to plead
that the individual defendants were reckless and that their conduct was
inexplicable or without explanation, are useless.

[21]        
Although proper pleading requires a concise statement of the facts,
where, as here, the behaviour is capable of characterization to clarify the
claim being advanced, in my view those particulars can be provided.

[22]        
The amendments sought are an obvious attempt to bring the pleading more
clearly in line with the reasoning in Sparks. Although they are not
necessary to found the claim of bad faith, they nevertheless make the point
clearer and therefore they are not useless and I would not disallow them on
that basis.

Requirements of the New Rules

[23]        
The defendants argue that the plaintiff has failed to plead in
accordance with the new rules. They submit that the plaintiff must include a
plea of bad faith to set out the legal basis for avoiding the indemnity in the Corrections
Act and, if the plaintiff is unsuccessful in his claim, to provide a proper
basis for the defendants to seek special costs for being confronted with such serious
allegations.

[24]        
The new Supreme Court Civil Rules provide in sub-rule 3-1(2)(c)
that a notice of civil claim must, “set out a concise summary of the legal
basis for the relief sought.”  As well, sub-rule 3-1(2)(g) requires the notice
of civil claim comply with rule 3-7.

[25]        
The required form provides, with respect to “Part 3: Legal Basis”:

Using numbered paragraphs, set
out a concise summary of the legal bases on which the plaintiff(s) intend(s) to
rely in support of the relief sought and specify any rule or other enactment
relied on. The legal bases for the relief sought may be set out in the
alternative.

[26]        
The requirement to plead the legal basis for the relief sought is new. The
parties were unable to provide me with any authority that considered the effect
of the change on an amendment of a statement of claim into the new form or with
respect to the new form itself.

[27]         
In British Columbia Teachers’ Federation v. British Columbia,
2012 BCSC 1722, Madam Justice Griffin considered the new form of notice of civil
claim in the context of an application for particulars. She held:

[14] Starting out with Part 3 of
the notice of civil claim itself, I see nothing wrong with the way in which the
plaintiff has set out the legal basis for the relief sought. The “Legal Basis”
portion of the notice of civil claim is appropriately concise; it commits the
BCTF to a cause of action and it adequately informs the Province of the legal
foundation of the claim. …

[28]        
Thus, in his pleadings the plaintiff must now commit to a cause of
action and adequately inform the defendants of the legal foundation of the
claim. I conclude the plaintiff will be limited to recovery founded on the
legal bases set out in his pleading.

[29]        
What the plaintiff has done in this case is cut and paste the old amended
statement of claim into the new notice of civil claim format. He has not
properly considered the requirements of the new rules.

[30]        
The statutory indemnity in the Corrections Act provides that any
claim against the individual defendants will fail absent bad faith.

[31]        
In Sparks at para. 16, the court cites Deep v. Ontario, [2004]
O.J. No. 2734 (Ont. S.C.J.), at para. 64 for the proposition that: “[b]ad faith
is a legal conclusion.”

[32]        
The legal basis in the notice of civil claim must therefore include a
plea of bad faith to inform the defendants of the legal foundation of the claim
against them. Such a plea would also clearly establish a basis for the
defendants to invoke the costs consequences referenced in Cooper, supra.

[33]        
Failure to do so violates Rule 3-1(2)(c) and as McLachlin, J. (as she
then was) noted in Victoria Grey Metro Trust Company, supra, at p. 47:
“the court will not give sanction to amendments which violate the rules which
govern pleadings.”  Accordingly, the application to amend the pleading in the
form proposed is denied. The plaintiff is at liberty to re-apply should he
choose to recast his pleadings.

[34]        
Costs to the defendants in the cause.

“Master Muir”