IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131030

Docket: S134866

Registry:
New Westminster

Between:

Nevada Ash

Plaintiff

And

Zellers
Inc. and Mark Magdaluyo

Defendants

Before:
Master Taylor

Reasons for Judgment

[1]            
This is a request for documents by the plaintiff in a suit for personal
injury which occurred during the course of the plaintiff’s arrest by the
personal defendant, while he was employed by the corporate defendant as a Loss
Prevention Officer. The documents the plaintiff seeks are three application
forms the personal defendant filled out when seeking employment with the Metro
Vancouver Transit Police, the Vancouver Police Department and the Royal
Canadian Mounted Police. All three were filled out while he was in the employ
of Zellers Inc.

Factual Background

[2]            
The injury to the plaintiff occurred on March 13, 2008. At the time, the
plaintiff was 16 years of age.

[3]            
 On the same date, the defendant, Magdaluyo was employed at the Central
City Zellers store in Surrey, B.C. as a Loss Prevention Officer. His duties
were to prevent loss (theft) by customers or employees. On the date in
question, Magdaluyo observed the plaintiff in the company of other young women.
He suspected that the plaintiff was shoplifting.

[4]            
At some point the plaintiff left the Zellers store and entered the
Central City Mall, and Magdaluyo pursued her there.

[5]            
Magdaluyo arrested the plaintiff for theft. While escorting the
plaintiff to the store’s security office, the plaintiff ran and was pursued by
Magdaluyo.

[6]            
The plaintiff alleges that Magdaluyo then grabbed her by the arms and:

a.         stood behind her;

b.         grabbed
hold of the plaintiff’s left shoulder with his right hand, with his right arm
across the front of the plaintiff’s chest;

c.         put his right leg behind and across the
plaintiff’s legs; and

d.         levered the plaintiff backward,

all of which prevented the plaintiff from protecting herself
from injury when she fell backwards and hit her head on the concrete floor
following her detention by Magdaluyo.

[7]            
At his examination for discovery, Magdaluyo admitted, inter alia,
that he used his legs as a lever to get the plaintiff to the ground and he saw
the plaintiff’s head strike the floor before any other part of her body. He
also observed the plaintiff lose consciousness after her head struck the floor.

[8]            
The plaintiff alleges the manoeuvre by the defendant, Magdaluyo, and the
eventual fall by the plaintiff caused the plaintiff to fracture her skull and
rendered her unconscious. Notwithstanding this, says the plaintiff, Magdaluyo
did not call for medical assistance or request that medical assistance be
summoned until after the police attended.

[9]            
The plaintiff alleges that following the incident with Magdaluyo, and
while the plaintiff was still unconscious, the defendant:

a.         rolled
the plaintiff onto her stomach without taking any steps to protect her against
further injury;

b.         sat on top of the plaintiff’

c.         handcuffed the plaintiff’s writs with her hands
behind her back;

d.         purported
to identify himself in a loud voice as a Zellers Loss Prevention Officer;

e.         forced
his knees into the plaintiff’s back, pressing her torso and face into the
concrete floor; and

f.          exposed, and looked
at and/or touched the plaintiff’s bare buttocks

[10]        
In the notice of civil claim, the plaintiff alleges negligence in the
hiring and or lack of proper training of the defendant, Magdaluyo, and, in
particular, alleges, inter alia the corporate defendant:

a.         had a
policy of hiring untrained and unlicensed persons as security personnel;

b.         employed
security guards who it knew or ought to have known were unsuitable, including
but not limited to, by reason of:

i. previous propensity towards
violence;

ii. drug or alcohol abuse;

iii. personality defect;

iv. psychiatric or psychological
defect; or

v. dishonesty.

c.         failed
to train, or failed adequately to train its loss prevention officers including
proper security and use of force techniques;

d.         before
the incident with the plaintiff knew or ought to have known that the defendant
had a propensity toward excessive force, a propensity toward violence against
others, that the defendant had assaulted and battered other persons, and had
unlawfully arrested and confined other persons;

j.          failed
to institute and enforce, or failed adequately to institute and enforce,
corrective policies to prevent further assaults and or batteries;

k.         failed
to provide proper standards for the hiring, training and supervision of LPO’s
at the Central City Zellers;

m.        failed to establish adequate
procedures, policies and guidelines for the arrest and detention of persons by
LPO’s at the Central City Zellers….

[11]        
At his examination for discovery, Magdaluyo admitted that he had applied
to become a police officer with the RCMP, the Vancouver Police Department, and
the Transit Police but had been rejected by all three. All three police force
applications were completed while Magdaluyo was employed by Zellers, but
without the knowledge of Zellers and the applications do not form a part of
Magdaluyo’s employment record at Zellers.

[12]        
Counsel for the plaintiff wrote to the defendants’ counsel to request,
pursuant to Rule 7-1(10), that their list of documents be amended to include
Magdaluyo’s applications to the three police forces. Given that the defendants
now have all three applications in their possession, it is likely the
application should be made pursuant to subrule (11) rather than subrule (10),
but the defendants are not making an issue of the difference.

[13]        
Plaintiff’s counsel has obtained a blank Transit Police application form
which is appended to an affidavit of a legal assistant in the office of counsel
for the defendants. It is 25 pages long in its blank form. Under “employment
history”, the form asks questions such as “what are your proudest achievements
in your current position?”, or “what are the biggest disappointments in your
current position?”

[14]        
Plaintiff’s counsel maintains that the application forms are important
due to questions asked about the applicant’s propensity for violence,
propensity for inappropriate sexual behaviours and propensity for dishonesty. These
questions are located at page 16 of the application form under the heading,
Personal Relationships. There are thirteen questions under this heading and I
set them out below with the question number from the application form:

58.       Provide
details on all physical altercations you have had with a spouse or partner, or
anyone associated to you in a domestic or family relationship.

59.       What is the worst emotional experience you have
ever had?

60.       provide
details on when you have used, or threatened to use, physical violence
toward any adult person. (Sports or otherwise) (their emphasis)

61.       Provide details where you have used physical force
toward a child.

62.       Provide
details of the time/s where you may have paid, or been paid, for sexual
activities.

63.       Have
you ever sexually forced yourself on another?  Have you ever been accused of
forcing yourself on another?

64.       Have
you ever been involved in the sex trade industry in any capacity (i.e.) driver,
receptionist, answering phones, street worker, etc)?

65.       Tell us
about any time you may have retained, or been involved with the service of an
escort agency, massage parlour, prostitutes (i.e. cruising for prostitutes,
buying for friends, etc.)

66.       Have you
ever had any sexual involvement with anyone without his or her consent?

67.       Has
anyone had any sexual involvement with you without your consent?  If yes,
provide details.

68.       Have
you ever been involved in a sexual manner with a child (under the age of 16)
regardless of your age?  If yes, provide details of all incidents. (Include
ages of participants)

69.       Give
the circumstances of your involvement in a sexual act that if you were caught,
you may have been prosecuted. Provide details of all incidents. (i.e.
sexual contact with an animal, exposing yourself in public, incest (sexual
relations with a family member), sexually explicit anonymous phone calls, or
peeked into someone’s window for sexual purposes etc.

70.       Provide details of your
use of pornography.

[15]        
The defendants submit that the information sought about an applicant for
employment by the Transit Police force deals with a wide range of sensitive and
intensely personal topics. As well, the application form also seeks to elicit
identifying information about the applicant’s entire family members, including
in-laws, former spouses, deceased parents, as well as character references. One
can only imagine that the other two police forces likely seek answers to
similar questions.

[16]        
Zellers has admitted it is vicariously liable for the acts or omissions
of Magdaluyo during the course of his employment, but has pled it is not
vicariously liable for any finding of punitive damages against Magdaluyo.

Discussion and Analysis

[17]        
The defendants maintain that in order to succeed in her application, the
plaintiff must first satisfy the court that the documents sought contain
information which may relate to a matter in issue, and that the application is
not in the nature of a fishing expedition, citing Gorse v. Straker, 2010
BCSC 119 at paragraph 16. As Macaulay J. said in Gorse, the formulation
of this test stems from the well-known decision of Peruvian Guano (1882),
11 Q.B.D. 55 at pp. 62-63 (C.A.) and permits access to documents that
relate to a matter in issue indirectly as well as directly.

[18]        
I am satisfied that the documents sought relate to a matter indirectly
in issue, for while the propensity of the personal defendant has been pled in
the notice of civil claim, that deals more with a collateral issue rather than
the main issue of the assault per se, and any consequential damages
arising from the tort of assault.

[19]        
However, in an affidavit filed by the defendants in opposition to the
application, a legal administrative assistant in the office of counsel for the
defendants has deposed that she has reviewed the notice of civil claim and says
that it does not contain any allegations that Magdaluyo exposed, looked at,
and/or touched the plaintiff’s bare buttocks. I have to accept this as correct
as the actual notice of civil claim was not provided to the court by any party.

[20]        
Taking into account that I have determined the documents sought relate
only to a matter indirectly in issue, I have to now decide whether any of the
information from the application forms is to be provided to the plaintiff.

[21]        
In my view, questions 58 and 60 from the employment application form for
the Metro Vancouver Transit Police, as set out above, and their answers are
such as was discussed in Przybysz v. Crowe, 2011 BCSC 731 at paragraphs
27 -28, as those documents which assist in a train of enquiry as contemplated
in Peruvian Guano. The others, in my view, are merely in the nature of a
fishing expedition.

[22]        
Accordingly, I order that the defendants provide to the plaintiff copies
of the personal defendant’s applications to the three stated police forces with
all answers completely redacted but for questions 58 and 60 and the answers
thereto as provided by Magdaluyo, or similar equivalents in the application
forms for employment by the Vancouver Police Department and the RCMP.

[23]        
Unless there are any matters of which I am unaware, I am of the view
that each party should bear its own cost for the preparation for, and
attendance at the hearing of this application.

“Master Taylor”