IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150428

Docket: S21883

Registry:
Cranbrook

Between:

Darquise
Beauchesne

Plaintiff

And

W.J. Stelmaschuk
and Associates Ltd.,
B.B., an infant, by his litigation guardian yet to be appointed,
E.K., an infant, by his litigation guardian yet to be appointed
and Her Majesty the Queen in Right of the Province of British Columbia

Defendants

And

W.J. Stelmaschuk
and Associates Ltd.,
B.B., an infant, by his litigation guardian yet to be appointed,
E.K., an infant, by his litigation guardian yet to be appointed

Third Parties

Before:
Master Harper

Oral Reasons for Judgment

In
Chambers

[1]           
THE COURT: The defendant, Her Majesty The Queen in Right of the
Province of British Columbia, whom I will refer to in these reasons as HMTQ,
applies for an order striking paragraph 21 of Part 1 and paragraph 2 of Part 3
of the notice of civil claim filed by the plaintiff in this matter as
disclosing no reasonable claim under Rule 9‑5(1)(a) of the Supreme
Court Civil Rules.

[2]           
I reserve the right to edit these reasons if a transcript of my reasons
is required, but the result will be the same.

[3]           
The application is also brought on the ground that the claim is
frivolous. I have not found it necessary to consider the application under
that ground, as I am satisfied that the application can be decided solely
under Rule 9‑5(1)(a).

[4]           
On an application under Rule 9‑5(1)(a), no evidence is admissible.
Therefore, I look only at the amended notice of civil claim. The facts are
assumed to be true.

[5]           
The facts, as asserted by the plaintiff, are that she was an employee of
one of the defendants, against whom the action has now been discontinued, W.J.
Stelmaschuk and Associates Ltd. (“Stelmaschuk”). Stelmaschuk operated a group
home in Cranbrook, British Columbia, and the plaintiff was employed to provide
care or some kind of services for the youths who were residing in that group
home. Stelmaschuk operated the home under an agreement with the Ministry for
Children and Family Development, who is represented in these proceedings by HMTQ.

[6]           
Unfortunately, during the course of her employment, the plaintiff was
attacked by two youths who resided in the group home and one of them slashed
her with a knife, causing injury. As a result of those injuries, the plaintiff
has sued the two youths, Stelmaschuk, and HMTQ. Because the plaintiff was a
worker employed by Stelmaschuk, the claim against Stelmaschuk is barred by the
operation of s. 10 of the Workers’ Compensation Act, R.S.B.C. 1996
c. 492, and therefore the claim has been discontinued against Stelmaschuk.
(Stelmaschuk participated in this application by virtue of being named as a
third party).

[7]           
The plaintiff did not amend her notice of civil claim to reflect any
changes in the nature of her claim as a result of the discontinuance against
Stelmaschuk.

[8]           
The amended notice of civil claim sets out the facts of the assault and,
leaving aside the claims against Stelmaschuk, which of course are irrelevant
now because the claim is discontinued, seeks judgment against the two youths.

[9]           
The only reference to a claim against HMTQ is at paragraph 22 of the
amended notice of civil claim which states:

22. Her Majesty The Queen is vicariously
liable for the torts of its wards and the plaintiff pleads the principle of respondeat
superior.

[10]       
Further, at paragraph 2 under Part 3 of the legal basis, the assertion
is repeated as follows:

2. Her Majesty is liable because
the tortfeasors were wards of the province at the time.

[11]       
Clearly the claim as pleaded is for vicarious liability only.

[12]       
HMTQ takes the position that the claim has no chance of success, and
therefore the claim should be struck. The plaintiff argues that Crown liability
is an evolving area and that it is not plain and obvious that the claim will
fail.

[13]       
I turn now to a discussion of the law, and I start with R. v.
Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45. In that decision, the
Supreme Court of Canada dealt with applications to strike. The overview is very
instructive, and therefore I will quote extensively from the decision,
starting with para. 19:

[19] 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.

[20] This promotes two goods – efficiency in the conduct of
the litigation and correct results. Striking out claims that have no reasonable
prospect of success promotes litigation efficiency, reducing time and cost. The
litigants can focus on serious claims, without devoting days and sometimes
weeks of evidence and argument to claims that are in any event hopeless. The
same applies to judges and juries, whose attention is focused where it should
be – on claims that have a reasonable chance of success. 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.

[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. Actions that
yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v.
Stevenson, [1932] A.C. 562 (H.L.) introduced a general duty of care to one’s
neighbour premised on foreseeability, few would have predicted that, absent a
contractual relationship, a bottling company could be held liable for physical
injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before
Hedley Byrne & Co. v. Heller & Partners, Ltd., [1963] 2 All E.R.
575 (H.L.), a tort action for negligent misstatement would have been regarded
as incapable of success. 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.

[22] A motion to strike for
failure to disclose a reasonable cause of action proceeds on the basis that the
facts pleaded are true, unless they are manifestly incapable of being proven: Operation
Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455. No
evidence is admissible on such a motion [and I will not refer to the
citation there, but it is the same as our Rule 9‑5(2)]. 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.

[14]       
The next case I wish to refer to as a foundation for my decision is
K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, and I quote from paras.
18 and 19. This is the section of the judgment entitled, “Vicarious Liability
of the Government for the Torts of Foster Parents”:

[18] Direct liability in negligence law requires tortious
conduct by the person held liable, in this case, the government. The doctrine
of vicarious liability, by contrast, does not require tortious conduct by the
person held liable. Rather, liability is imposed on the theory that the person
may properly be held responsible where the risks inherent in his or her
enterprise materialize and cause harm, provided that liability is both fair and
useful: Bazley v. Curry, [1999] 2 S.C.R. 534; Jacobi v. Griffiths,
[1999] 2 S.C.R. 570.

[19] To make out a successful
claim for vicarious liability, plaintiffs must demonstrate at least two things.
First, they must show that the relationship between the tortfeasor and the
person against whom liability is sought is sufficiently close as to make a
claim for vicarious liability appropriate. … Second, plaintiffs must
demonstrate that the tort is sufficiently connected to the tortfeasor’s
assigned tasks that the tort can be regarded as a materialization of the risks
created by the enterprise. This was the issue in Bazley, supra,
which concerned whether sexual assaults on children by employees of a
residential care institution were sufficiently closely connected to the
enterprise to justify imposing vicarious liability.

[15]       
In my view, if there is no vicarious liability on the part of a foster
parent for a tort committed by a child, as in K.L.B., then HMTQ, being a
statutory parent, cannot be held vicariously liable either.

[16]       
Here there is no claim in direct negligence against HMTQ. Even if there
were, counsel for HMTQ says that claim would be barred by the operation of
s. 10 of the Workers’ Compensation Act, and that procedure would
play itself out through a hearing before the Workers’ Compensation Appeal
Tribunal. In any event, none of those facts are before me, since that is not
the claim that is being pleaded. And I repeat for emphasis that I am
making this decision solely on the pleadings that are before me.

[17]       
The plaintiff cites Bazley v. Curry, [1999] 2 S.C.R. 534 which
I have already referred to in the quotation from K.L.B. At para. 30
of Bazley, the court quotes Fleming as follows:

…“a person who employs others to
advance his own economic interest should in fairness be placed under a
corresponding liability for losses incurred in the course of the enterprise”.

[18]       
Bazley was a resident of a group home and Curry was an employee of the
foundation that operated the group home.  Curry committed assaults on Bazley. The
foundation was held vicariously liable to the plaintiff for the tort committed
by its employee. That fact situation is entirely different from the fact
situation set out in the amended notice of civil claim in the present case.

[19]       
The roles of the parties are the reverse of those in Bazley. In Bazley,
the victim was the resident and the assailant was the employee, whereas in the
present case, the victim was the employee and the assailant was the resident.
Vicarious liability attached to Curry’s employer because of the
employer/employee relationship.  Here, the defendants B.B. and E.K. do not have
a relationship with HMTQ that would impose vicarious liability on HMTQ for the
torts they committed.

[20]       
The plaintiff argues that HMTQ brings a risky enterprise into the
community and that in some way liability should attach to HMTQ for the torts
committed by the youths in the group home. However, there is no pleading in the
notice of civil claim made directly against HMTQ for any negligence or other
wrongdoing that would found any claim in direct liability. Again, to repeat
myself, if there were, s. 10 of the Workers’ Compensation Act would
be engaged and a process would then be embarked upon to ascertain whether HMTQ
would stand in the place of an employer, and therefore the claim against HMTQ
would be statute-barred. That procedure is not one that is carried out in the
court; rather, it is carried out by the Workers’ Compensation Appeal Tribunal.

[21]       
The plaintiff further argues that the application to strike should at
least be adjourned until an examination for discovery has been completed. In my
view, an examination for discovery will not help the plaintiff’s claim and
I cite again Imperial Tobacco where, at para. 22, the court
says:

[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.

[22]       
In my view, that quotation is directly applicable to the case before me.
I cannot decide this application on a hypothetical further amended notice of
civil claim.

[23]       
There is no reasonable claim set out in paragraph 22 of the notice of
civil claim and the consequential paragraph under the legal basis of the
amended notice of civil claim. This is not a novel claim. The plaintiff was
injured at work in circumstances that are squarely caught by the operation of
s. 10 of the Workers’ Compensation Act. There is no legal
foundation for liability of HMTQ for the tort committed by the youths on the
authority of K.L.B. In the twelve years since K.L.B. was decided,
there has been no case that in any way would refute the authority of K.L.B.

[24]       
So in all of the circumstances, the application is granted. I should
say that, as harsh as the result might seem, the plaintiff is entitled to a
claim under Workers’ Compensation, assuming that she made one in time, and for
compensation under the Criminal Injuries Compensation Program.

[25]       
Despite the unfortunate injuries sustained by the plaintiff, there is no
reasonable claim set out in paragraph 22 of the amended notice of civil claim
and the claim is struck.

[26]       
I will now hear submissions with respect to costs.

[SUBMISSIONS RE COSTS]

[27]       
THE COURT:  So costs do follow the event. The plaintiff’s circumstances
are no different from any other litigant’s and there are no compelling reasons
for me to depart from the usual rule that costs follow the event. Therefore,
the plaintiff will pay the costs of this application to HMTQ. Just to clarify
for the record, there will be no order for costs in favour of Stelmaschuk.

[28]       
MR. SKORAH:  Thank you.

[29]       
THE COURT:  All right, thank you very much everyone.

[30]       
MR. DALMYN:  Your Honour, there are two trailing points to clean up. One,
the order is to strike the claim. The application was also to dismiss the
action.

[31]       
THE COURT:  Right.

[32]       
MR. DALMYN:  May I draft it in that fashion? Is that your
order?

[33]       
THE COURT:  Well, the action is not dismissed, it is only the claim
against HMTQ. The two youths are still in there.

[34]       
MR. DALMYN:  Yes, I should have been more clear, the action against
HMTQ is —

[35]       
THE COURT:  Is dismissed.

[36]       
MR. DALMYN:  — is dismissed, yes.

[37]       
THE COURT:  The action against HMTQ is dismissed, and I meant to
deal with the application for the examination for discovery. It is moot and it
is dismissed.

“Master Harper”