Reasons for Judgment — LeBel J. (McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring)
LeBel J. — The Attorney General of British Columbia (“AGBC”) appeals from a judgment in which the British Columbia Court of Appeal held him vicariously liable to pay damages resulting from the death of a driver in a crash that occurred during a police chase of a stolen car. For the reasons which follow, the AGBC is in my opinion liable for all the damages, and I would accordingly dismiss the appeal.
T.B., who was 14 years old, stole a car. An RCMP constable pursued the car through the streets of Vancouver. T.B. hit a car driven by a woman, who died in the collision. The woman’s family sued T.B. and the AGBC for compensation under the Family Compensation Act, R.S.B.C. 1996, c. 126. The British Columbia Supreme Court found T.B. 90 percent at fault and the police officer 10 percent at fault.
Section 4(2) of the Negligence Act, R.S.B.C. 1996, c. 333, provides that multiple tortfeasors who are found to be at fault for the same damage are jointly and severally liable. Under the Police Act, R.S.B.C. 1996, c. 367, s. 11, the AGBC is deemed to be liable for torts committed by provincial constables in the performance of their duties. Section 21(2) of the Police Act exempts police officers from liability to pay damages resulting from acts of simple negligence in the performance of their duties by barring any actions against them. According to s. 11, the AGBC is “jointly and severally” liable for torts committed by a police officer.
After the initial finding of liability and a judgment which determined the amount of compensation, the focus of the litigation shifted to determining who would pay the compensation _ the AGBC or the Insurance Corporation of British Columbia (“ICBC”) _ given that T.B. was an uninsured driver.
The judgments of the Supreme Court of British Columbia and the Court of Appeal addressed the scope of the AGBC’s vicarious liability and other questions relating to ICBC’s liability. The chambers judge held that the AGBC was jointly and severally liable with T.B. for the damages, and that ICBC was required to pay the portion of the damages attributed to T.B. ((2003), 15 B.C.L.R. (4th) 305, 2003 BCSC 958). Levine J.A., writing for the Court of Appeal, upheld the finding of joint and several liability against the AGBC, but held that the AGBC was not entitled to contribution from ICBC ((2005), 209 B.C.A.C. 144, 2005 BCCA 104).
In the meantime, the family of the deceased received full payment of the damages from the AGBC. It assigned its rights to the AGBC. Legal proceedings between the AGBC and ICBC concerning their respective contributions to the damages are still under way in the British Columbia courts.
At the hearing in this Court, the AGBC stated that the sole issue before us is the scope of his vicarious liability under the Police Act. He asserted that the Court need not comment on any other issue.
The AGBC addressed the scope of his liability. In brief, he argued that it is limited and does not exceed the proportion of the damages attributed to the fault of the police officer.
In my opinion, Levine J.A. correctly defined the scope and effect of the vicarious liability imposed on the AGBC for torts committed by police officers. She stated, at paras. 21 and 22, that the AGBC’s liability was the liability that would have been imposed on the officer were it not for the immunity granted in s. 21.
Section 21 grants immunity to the police officer. But s. 11 protects the victim by transferring the tortfeasor’s liability to the AGBC. The AGBC takes the officer’s place. The victim retains his or her rights, but against a different debtor. If the officer would have been jointly and severally liable with another tortfeasor but for the statutory immunity, the AGBC will also be so liable.
Under the Police Act, the imposition of vicarious liability requires fault on the officer’s part and damages. Section 21 exempts the officer from liability, and the liability arising from his fault is transferred to the AGBC. As the damages are deemed to be indivisible, the police officer and T.B. would normally be jointly and severally liable under s. 4(2) of the Negligence Act. Because s. 21(2) of the Police Act exempts the officer from liability while s. 11 deems the AGBC to be liable, the victim is entitled to claim full compensation from the AGBC.
For these reasons, I would dismiss the appeal with costs in our Court.
Cases cited
- 15 B.C.L.R. (4th) 305 15 B.C.L.R. (4th) 305 ¶ 5
- 2003 BCSC 958 2003 BCSC 958 ¶ 5
- 209 B.C.A.C. 144 209 B.C.A.C. 144 ¶ 5
- 2005 BCCA 104 2005 BCCA 104 ¶ 5