On June 19, 2013, the British Columbia Court of Appeal (BCCA) released its landmark decision in Aitken v. Minister of Public Safety, 2013 BCCA 291. The Plaintiff, Mr. Aitken, was seriously injured in a car accident while he was seated in his car having lunch during a break. The collision was caused, he alleges, in part by the RCMP who were pursuing the vehicle that caused the collision. By way of background, when a claim is brought under section 11 of the Police Act, the Minister is named “on behalf of the government”. The Minister is a mere nominal defendant; the claim is one that is brought against the provincial government.
Police officers, in the execution of their duties, must have a high degree of independence from government. That independence was seen as a reason not to impose liability for their torts or wrongdoings on the municipalities that they served. While they were acting on behalf of the Crown, courts were reluctant to treat them as employees of the Crown. Absent Statute (parliamentary law), a person injured by the wrongdoing of a police officer could sue only the officer. By 1964, the law had been modified in England with their Police Act and Canada followed suit in 1974, which made municipalities jointly and severally liable .
It would have been difficult in 1974 to make the provincial government liable for police officers because the Crown Procedure Act governed lawsuits against the Crown. The Crown Procedure Act required that one first obtain the Crown’s permission to do so, seeking a fiat (formal authorization). The BCCA states at paragraph 34 as follows:
[34] It is unfortunate that s. 11 of the Police Act has not undergone modification since its original enactment. The requirement of the statute that a claim be brought against the Minister on behalf of the Crown, rather than against the Crown directly, no longer has a rationale. The section is also confusing in that it describes the Minister as being “jointly and severally” liable for the torts of provincial constables. While that language was accurate when it was included in the 1974 Police Act, it ceased to be accurate when the statute was repealed and replaced by the Police Act, S.B.C. 1988, c. 53. The 1988 statute included a provision absolving constables from personal liability for torts committed in the purported performance of their duties. Thus, there is generally no one with whom the Crown can be said to be “jointly and severally liable”.
The Court goes on to state the question and issue raised by the case: whether section 10(1) of the Workers Compensation Act bars the action against the Minister. That turns on the identity of the true defendant. The Court held at paras. 36 and 37:
[36] …In my view, the statute’s interposition of the Minister as a nominal defendant does not alter the fundamental nature of the claim – it is the Crown that is vicariously liable for the torts of members of the provincial police force. As the Crown is an “employer”, s. 10(1) serves to bar an action under s. 11 of the Police Act where the injured party is a worker.
[37] The certified findings of the WCAT establish the facts necessary for the Court to determine that the claim under s. 11 is barred by s. 10(1) of the Workers Compensation Act: The plaintiff was a worker under Part 1 of the Workers Compensation Act; his injuries arose out of and in the course of his employment; the Crown was an employer engaged in an industry within the meaning of Part 1 of the Workers Compensation Act; and any conduct of the Crown or the RCMP constable (the Crown’s agent), which caused the alleged breach of duty of care arose out of and in the course of employment.
What Does This Mean For You?
This decision appears to indicate that if you are injured by a police officer, who is in the course of his/her duties as a police officer, and you are also “working” at the time of the accident/incident, your claim may be designated as a work-related injury and WorkSafeBC has exclusive jurisdiction to handle the claim. Whether or not that applies to intentional torts committed my police officers, such as assault and battery, or false arrest or false imprisonment, is less clear.
Those actions may still be maintained but the injury portion of the claim may be within WorkSafeBC jurisdiction. The decision is very new and it has not been judicially considered by a trial court as of yet, not by the Workers Compensation Appeal Tribunal. Whether or not RCMP officers are or can ever be employees of the provincial government is, in our view, an open question, which may cast doubt on the general applicability of the reasoning of the Court of Appeal.
This is a complicated and evolving area of the law and you should always seek legal advice before deciding whether to pursue a tort action and to determine how best to protect a potential WCB claim.
Perminder Tung
Partner – Personal Injury and ICBC Car Accident Litigation
LK Law Langley Law Firm