IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130502

Docket: S115242

Registry:
Vancouver

Between:

Richard Cyr

Plaintiff

And

The City of Vancouver,
Vancouver Police Board, Jamie Hilborn

and
Agnieszka Zaremska

Defendants

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]            
The plaintiff seeks damages from the City of Vancouver (the “City”) for assault
and false imprisonment by two police officers. The City applies for dismissal
of the action on summary trial because the plaintiff’s notice of civil claim
was filed after expiry of the applicable limitation period. The issue is
whether the City’s correspondence with the plaintiff confirmed the plaintiff’s cause
of action and extended the limitation period.

[2]            
The plaintiff says he was unlawfully arrested after the police officers made
a “traffic stop” of his car on Richards Street in downtown Vancouver on February
16, 2009. The notice of civil claim alleges:

In intentionally or recklessly making an
arrest without good and sufficient cause the Defendants:

(a)      Approached
the Plaintiff from behind;

(b)      Grabbed
both his arms in an attempt to raise his arms behind his back;

(c)      Slammed
his body into his vehicle with force;

(d)      Persisted
in the movement of his arms despite the fact that his limbs did not articulate
in the manner they were being forced subjecting the Plaintiff to noticeable
significant pain; and

(e)      Misperceiving the above as
resistance, forcefully kneeing the Plaintiff in the legs several time.

[3]            
The plaintiff also says one of those blows missed his leg and damaged
the car door. He says he was then handcuffed and told to sit on the curb while
the officers searched his car and was required to provide two breath samples. Neither
the search nor the breath samples provided any basis for the plaintiff to be
detained and, after about half an hour, he says he was released with a traffic
ticket for parking too far from the curb.

[4]            
The plaintiff says he suffered soft tissue injuries, the most
significant of which is an injury to his right shoulder, leaving him with a
partial disability that has and will continue to cause loss of income. He also
seeks aggravated and/or punitive damages.

[5]            
The plaintiff initially sued the individual officers and the Vancouver
Police Board (the “board”), as well as the City. The officers are employees of
the board, not the City and, at common law, the board would be vicariously
liable for wrongful acts of its employees. However, s. 20(1)(a) of the Police
Act, R.S.B.C. 1996, c.367 effectively transfers that liability to the City.

(a) a municipality is jointly and
severally liable for a tort that is committed by any of its municipal
constables, special municipal constables, designated constables, enforcement
officers, bylaw enforcement officers or employees of its municipal police
board, if any, if the tort is committed in the performance of that person’s
duties

By consent order of September 17, 2012, the plaintiff
withdrew his claims against the board and the individual officers, leaving the
City as the only defendant.

[6]            
The notice of civil claim was filed on August 8, 2011– two and a half
years after the alleged incident and six months after the expiry of the
applicable limitation period. Section 3(2)(a) of the Limitation Act, R.S.B.C.
1996 c. 266 (the “Act”), provides:

(2) After the expiration of 2 years after the date on which
the right to do so arose a person may not bring any of the following actions:

(a) subject to subsection (4) (k), for damages in
respect of injury to person or property, including economic loss arising from
the injury, whether based on contract, tort or statutory duty;

[7]            
However the plaintiff alleges that the time limit was extended because
the City, in its dealing with him, confirmed the cause of action and he relies
on s. 5 of the Act, which reads in part:

5 (1) If, after time has begun to run with respect to a
limitation period set by this Act, but before the expiration of the limitation
period, a person against whom an action lies confirms the cause of action, the
time during which the limitation period runs before the date of the
confirmation does not count in the reckoning of the limitation period for the
action by a person having the benefit of the confirmation against a person
bound by the confirmation.

(2) For the purposes of this section,

(a) a person confirms a cause of
action only if the person

(i) acknowledges a cause of action,
right or title of another, or

(ii) makes a payment in respect of
a cause of action, right or title of another,

…

(5) For the purposes of this section,
an acknowledgment must be in writing and signed by the maker.

[8]            
The plaintiff filed a complaint with the Vancouver Police Department
(“VPD”) two days after the February 16, 2009 incident. He was subsequently
contacted by Sgt. McEwan of the VPD, who said he was investigating the matter
pursuant to the Police Act. In a letter dated April 30, 2009, Sgt.
McEwan provided the plaintiff with a summary of his investigative steps and
advised the plaintiff to contact the City’s Risk Management Department (“Risk
Management”) with respect to his claim for compensation. Sgt. McEwen also gave
the plaintiff an authorization form for the release of his medical information,
which the plaintiff signed on May 28, 2009.

[9]            
The plaintiff contacted Risk Management on May 6, 2009 and on May 14,
2009 received a response from a claims investigator, Ms. Rosnau. She said the City
was “reviewing the circumstances of your claim” and that when information was
received “either our office or the police department will be in touch with you.”

[10]        
The plaintiff responded with an email asking how long the process of
dealing with his claim would take and Ms. Rosnau advised that such
investigations generally take six to eight weeks, but could be longer. On June
23, 2009, Ms. Rosnau advised in an email that “it may take us longer than originally
hoped to make a determination on your claim.”

[11]        
During the following year, the plaintiff’s communication was with Sgt.
McEwan, either directly or through the office of the Police Complaint Commissioner
(the “commissioner”). The commissioner granted several requests by Sgt. McEwan
to extend the time for his investigation. One letter to the plaintiff from the
commissioner’s office, dated December 17, 2009, quoted Sgt. McEwan as saying he
had contacted Risk Management “to facilitate reimbursement.”

[12]        
At various times, the plaintiff was told that Sgt. McEwan was dealing
with an Insurance Corporation of B.C. adjuster in regard to the damage to his
car, that the officers involved wanted to proceed with “an informal resolution”,
and that a mediation was being arranged. On June 11, 2010, Sgt. McEwan told him
that the commissioner would not allow mediation and the formal investigation
had resumed.

[13]        
On July 29, 2010, the plaintiff sent another email to Risk Management,
re-introducing himself. He said he had been:

directed by Sergeant Colin
McEwan from the Professional Standards Section of the Vancouver Police
Department to contact your department seeking compensation for damages…

After referring to his shoulder
injury and the cost of repairing his vehicle, he said:

The reason i (sic) have not
contacted you earlier is that the investigation was ongoing and i (sic) wanted
to see if this injury would heal. It has not.

[14]        
On October 17, 2010, the plaintiff sent another email to Risk Management,
saying he wanted to “set up a meeting to discuss compensation for the damages
the VPD caused.” He said he had been in contact with Sgt. McEwan throughout the
process and had been waiting for his final report, which would soon be completed.

[15]        
The report the plaintiff referred to was released the next day. It was
not by Sgt. McEwan, but by Insp. de Haas of the VPD, acting as the “discipline authority”
under the Police Act. He concluded that although the officers had
lawfully arrested the plaintiff, they had used excessive force. (For purposes
of the plaintiff’s claim, I consider the finding of excessive force to be the
significant one because it is that force that is alleged to have caused the
plaintiff’s injuries.)

[16]        
On October 26, 2010, the City’s Manager of Claim Services, Oi-Lun
Jackson, responded to the plaintiff with an email that said:

[T]his message is further to
yours of October 17, 2010…requesting a meeting to discuss your claim. If you
would like to provide some dates and times that would work for you, we can set
something up, or in the alternative, we can discuss the matter by telephone.

[17]        
The plaintiff replied on November 4, 2010, saying he was then out of
town but thought the matter was “pretty straight forward.” He said he would instruct
a lawyer in January if the matter was not resolved, adding: “If this is the
avenue you would prefer other than dealing with me directly than (sic) just let
me know and i’ll (sic) make those arrangements.”

[18]        
Ms. Jackson responded on November 10, 2010, with a letter saying:

We sincerely regret that you
suffered injury as a result of this unfortunate incident.

The letter enclosed authorizations for the plaintiff to sign
for release of medical and employment information. Although the letter is
labelled “without prejudice,” it was put into evidence by the City, which does
not claim any settlement privilege over it.

[19]        
The plaintiff provided further details of his claim on December 5, 2010,
and on December 23 he was asked for contact information for his employer.

[20]        
Meanwhile, the commissioner had issued a notice on November 9, 2010 that
he was appointing an adjudicator to review the matter and Insp. de Haas’s
conclusions. On December 13, 2010, the adjudicator agreed with Insp. de Hass
that the officer used excessive force, but also found that there had been no
cause for either the arrest or the vehicle search.

[21]        
On February 8, 2011, Ms. Jackson wrote to the plaintiff again saying some
material had been received from the employer, but further clarification was
required. The plaintiff provided the name of a contact person on February 24
and, on March 3, Ms. Jackson said she would try to make contact as soon as
possible. Then, on March 11, 2011, Ms. Jackson wrote again to the plaintiff, noting
that the Act required legal action to be initiated within two years from the
incident date, and asking if he had filed an action.

[22]        
A cause of action is confirmed under s. 5 of the Act only if the defendant
acknowledges some liability. Acknowledgement of the bare fact that a claim has
been made and a cause of action asserted does not amount to confirmation. However
the test is an objective one, based on how a reasonable person receiving the written
communication from the defendant would understand it. Podovinikoff v.
Montgomery, (1984), 58 B.C.L.R. 204 (B.C.C.A.) (“Podovinikoff”), at
paras. 12 and 16.

[23]        
In this case, the plaintiff was dealing with two parallel processes: a
complaint of misconduct under the Police Act, on which he was
communicating with Sgt. McEwan, and a compensation claim to be pursued through Risk
Management.

[24]        
Although no monetary compensation was possible through the Police Act
process, that was not made entirely clear to the plaintiff in Sgt. McEwan’s
correspondence. For example, in an email on October 13, 2009, Sgt. McEwan told
the plaintiff that he was dealing with ICBC to get a final total on his vehicle
damage claim “so I can submit it to the City for reimbursement.”  Sgt.
McEwan also said that once that matter was dealt with, he could work on “the
other components of the resolution”.

[25]        
At one point in his correspondence with Sgt. McEwan, the plaintiff
specifically addressed the question of where and how he could recover damages
for his vehicle. He expressed confusion as to whether that would be part of the
mediation process then being considered and claimed to have been advised by someone
at the “mediation office” that he would have to pursue the City for damages. Sgt.
McEwan told the plaintiff that “[w]e are still looking into facilitating the
reimbursement of your deducible for the repair of your car through ‘Risk
Management’ at City Hall.”

[26]        
I find that the plaintiff was understandably confused about the proper avenue
for receiving compensation for his personal injuries and property damage. This
confusion was not helped by Sgt. McEwan, who led the plaintiff to believe that
he would be compensated, at least for the property damage.

[27]        
Unfortunately for the plaintiff, nothing Sgt. McEwan said could confirm
the cause of action under s. 5 because he was neither an employee nor agent of
the City. Sgt. McEwan was employed by the board, as were the officers involved.

[28]        
No one clearly drew the plaintiff’s attention to the distinction between
the board and the City, or to the statutory scheme under which the City is
liable for the actions of police officers even though it is not their employer.
In my view, this division of responsibility between the board and the City
created a legal trap that an unrepresented claimant could easily fall into, as
the plaintiff did in this instance. However, s. 5 is clear that the confirmation
must come from the defendant and there is no basis on which I can attribute
anything said by Sgt. McEwan to the City.

[29]        
If there was any confirmation, it must be found in the correspondence by
letter and email that the plaintiff received from Risk Management. That is to
be determined by an objective analysis. In Podovinikoff, the Court of
Appeal said at para. 16:

In my view, what was said by the
trial judge (reproduced earlier in this judgment) supports the conclusion that
a reasonable person receiving the letters and reading them would take it that
the insurer was going to settle the respondent’s personal injury claim. Thus,
the second and third letters admit some liability and properly acknowledge the
cause of action. I would only add that this conclusion is strongly supported by
the consideration that there is nothing in the letters to indicate that the
insurer had any reservations about settlement. Thus, there was nothing which
might indicate to the recipient of the letters anything other than that the
insurer would settle. If the adjuster had any doubts about settlement he would
surely have said that liability was not admitted and that he would enter
settlement discussions without prejudice. If the adjuster wanted only to void
litigation and secure peace, one would expect to find some indications of this
position in the letters.

[30]        
The question of how a reasonable person would understand the defendant’s
statement must be considered in light of the circumstances known to both
parties at the time. In Richter v. Wilcot, (1983), 47 B.C.L.R. 249, the
defendant’s insurer concluded almost immediately that the defendant was liable
for a motor vehicle accident in which the plaintiff had been injured. Ten
months later, an adjuster wrote to the plaintiff asking if “you are in a
position to consider settlement of your injury claims” and stating “hopefully
we will be able to conclude settlement entirely to your satisfaction.” McEachern
CJSC said:

I do not think, in a case where liability was not disputable,
or in dispute, that I should read the adjuster’s letter legalistically. He said
he hoped the matter would be settled entirely to the plaintiff’s satisfaction.
It is true that his language could be construed as only precatory or
anticipatory, without any promise or commitment but that would be unrealistic in
the circumstances. …

Consistency in these practice
matters is much to be desired, and serious rights should not be determined
differently in similar circumstances when the only distinction is in the
phraseology of a letter inviting settlement when both the sender and the
recipient knew what the facts were. If the adjuster was not acknowledging
liability when he knew there was full liability then he should not have invited
settlement and suggested the matter could be settled to the entire satisfaction
of the plaintiff as it is obvious it could not be so settled if liability was
still in dispute.

[31]        
A similar result was reached in Florio v. Hay, 2000 BCSC 1609,
which also involved a motor vehicle accident. An adjuster had sent the
plaintiff a letter enclosing a police report, asking the plaintiff to provide
wage loss information and saying “I look forward to an early resolution of this
matters.” (sic).

[32]        
Hood J. noted that the plaintiff’s vehicle had been struck from behind
by a drinking driver and liability was clearly not in issue. He said at
paras. 18 and 19:

… At the time of the letter the parties were exchanging
information which the Adjuster believed would lead to an early resolution,
which in context could only mean a settlement of the matter being discussed…

In my opinion, a reasonable man
would read the letter as providing both an acknowledgment of a cause of action,
and an admission of liability, as well as advice that the Corporation wanted to
settle the plaintiff’s claims on that basis…

[33]        
In this case, the plaintiff, on October 17, 2010, specifically told the
City he wanted a meeting to discuss compensation and referred to the
forthcoming police investigation report. After the report was issued and said that
the officers had used excessive force, the City agreed to meet or to discuss
the matter by telephone. That was followed by a signed letter, acknowledging
that the plaintiff was injured in an “unfortunate incident.” The plaintiff knew
what had recently been said in the investigation report and the City’s letter
said nothing to suggest it questioned or disagreed with those findings.

[34]        
Based on both the content and timing of the City’s communication, I find
that a reasonable person in the position of the plaintiff would have understood
that the City, having learned of the facts and conclusions set out in the
investigation report, recognized that liability could not be in dispute and was
prepared to settle the case on receipt of further information about the
plaintiff’s damages.

[35]        
I find the effect of the City’s letter of November 10, 2010, considered
in the context of the email of October 26, 2010 and the conclusions in the
investigation report, to be a confirmation of the cause of action under s. 5. For
purposes of the Act, time did not begin to run until November 10, 2010, and
this action was not statute-barred when it was commenced.

[36]        
The defendant’s summary trial application is therefore dismissed, with
costs in the cause.

“N.
Smith J.”