Braybrook v. Canada, 2005 FC 417

Date: 20050324

Docket: T-2139-03

Citation: 2005 FC 417

BETWEEN:

                                                          BRIAN BRAYBROOK

                                                                                                                                               Plaintiff

                                                                           and

                                                  HER MAJESTY THE QUEEN IN

                                     RIGHT OF CANADA, THE COMMISSIONER,

                                         ROYAL CANADIAN MOUNTED POLICE,

                                               CONSTABLE SYLVESTER KELLY,

                                         ROYAL CANADIAN MOUNTED POLICE,

                                      CONSTABLE JACKLIN, ROYAL CANADIAN

                              MOUNTED POLICE, ROYAL CANADIAN MOUNTED

                                         POLICE OFFICERS ONE THROUGH TEN

                                                                                                                                         Defendants

                                                        REASONS FOR ORDER

HARGRAVE P.

[1]         By this action the self-represented Plaintiff, who lost control of a stolen RCMP vehicle, hit a power pole and was subsequently struck by another RCMP vehicle, claims for injuries, including complications resulting in the amputation of his left leg.

[2]         There has been considerable delay in dealing with the present motions to strike out the Statement of Claim. In part the delay is the result of various directions designed to give Mr. Braybrook, the Plaintiff, the opportunity to organize and to provide proof of service of his reply material, tendered in the form of a motion responding to motions which material includes a request for leave to amend "to properly and concisely plead his cause of action against Her Majesty the Queen". While there is still no proof of service and Mr. Braybrook's material may be otherwise defective, I have decided, as a matter of expediency, to consider the merits of both the motions of various Defendants to strike out the claim and the Plaintiff's responding material, including the unparticularized request to amend, the latter in the context of whether that amendment or any other possible amendment would produce a scintilla of a cause of action.

[3]         The Defendant police constables involved and the Crown in right of Canada are successful in having the action struck out. No amendment of this Federal Court Statement of Claim could possibly assist the Plaintiff against those parties and thus there is no leave to amend. As to the remaining Defendant, the Commissioner, Royal Canadian Mounted Police, it would seem that no one either represents him or makes representations on his behalf: leaving aside the question of whether there is a reasonable cause of action against the Commissioner, he remains a Defendant. I will now consider this in more detail, beginning with some relevant background.

BACKGROUND

[4]         In order to put the background facts into a proper perspective and to deal with the complaint of the Plaintiff, that the Defendants have produced no affidavit evidence, I will state, without specifically referring to precedents as sources, several well established propositions of law. First, in dealing with an application to strike out a Statement of Claim, I must accept, as if proven, what is set out in the Statement of Claim, in order to test it for a reasonable cause of action pursuant to Rule 221(1)(a). Second, by Rule 364(2) there is no requirement that a moving party's Motion Record contain affidavit material. Third, the test for striking out is whether it is plain, obvious and beyond doubt that the action cannot succeed. Finally, an action ought not to be struck out, without leave to amend, if an amendment might produce a scintilla of a cause of action.

[5]         From what is set out in the Statement of Claim and here I note that the Plaintiff appears to be quite candid in what he sets out in the Statement of Claim filed 14 November 2003, the Plaintiff was arrested on 7 November 2001 for theft under $5,000 and placed in the back seat of an RCMP vehicle by the Defendant, Constable Jacklin. The Plaintiff was not in handcuffs, the divider window between the front and back of the vehicle was open and Constable Jacklin momentarily left the vehicle, engine running, to speak with other officers. The Plaintiff, showing more initiative than the other three individuals in the back seats, climbed through the partitioned window into the front seat and drove the vehicle away. At that point one of the bystanding policemen shot several times into the door behind which the Plaintiff sat, but the door stopped the bullets.

[6]         Other RCMP officers then pursued the Plaintiff and about three blocks away the Plaintiff lost control and immobilized the vehicle against a power pole.

[7]         The Plaintiff tried to leave the RCMP vehicle, however the Defendant, Constable Kelly, in pursuit, struck the door on the driver's side of the immobilized police vehicle, pinning the Plaintiff's left leg in the door frame.

[8]         Taking the Statement of Claim, for the purposes of this motion, as if proven, a paramedic attended and asked the police to move their vehicle so that he could free the Plaintiff and attend to apparently serious injury including bleeding. The police eventually moved the vehicle and then dragged the Plaintiff some distance through the dirt, but did not provide medical assistance.

[9]         The Plaintiff was placed in the back of a Suburban vehicle, where he managed to apply pressure to his crushed left leg and stop the bleeding.

[10]       At the Penticton Regional Hospital doctors amputated the Plaintiff's left leg above the ankle, but as a result of serious infections, allegedly due both to contamination with dirt and lack of timely treatment at the scene of the accident, had to perform a series of seven further amputations, leaving the Plaintiff with only the stump of his left leg. This train of pleading concludes that the amputations were a result of delay in medical treatment and of dirt getting into the open wounds when he was dragged away from the vehicle.

[11]       The Plaintiff who had spent all twenty years of his life in Penticton sets out in the Statement of Claim that the RCMP officers involved knew him well, that he was not dangerous and that he had a history of minor theft of liquor from stores and bars. The Statement of Claim sets out that the RCMP knew the Plaintiff had a propensity to run away, yet failed to secure him when they put him in the back of the police vehicle. The Statement of Claim goes on to state that the RCMP knew the Plaintiff was neither armed nor dangerous and thus both the serious use of force in shooting at the fleeing vehicle and the measures used to subdue him were unnecessary and excessive under the circumstances.

[12]       In the result the Plaintiff has various permanent disabilities. He seeks $1 million in damages for emotional harm and $5 million for loss of his leg, a lifelong disability, and for emotion distress. I will now turn to a consideration of the motions to strike out, beginning with a motion of Corporal Cyril Kelly and Constable Terry Jacklin.

CONSIDERATION

Cause of Action Against the On-Scene RCMP Officers

[13]       Pursuant to the Police Act, R.S.B.C. 1996, c. C-367, a municipality of more than 5,000 persons must provide policing. In the case of larger centres, for example Vancouver, they may have their own police force. In other instances a community may find it more sensible to contract with the RCMP for policing and law enforcement and this is specifically provided for in section 14 of the Police Act. Here I accept and take notice of the fact that policing in various communities in British Columbia is in fact carried out by the RCMP under contract and that Penticton, British Columbia, falls into that category. In effect, the present situation comes within an agreement between the government of Canada and the government of British Columbia, pursuant to section 20(1) of the RCMP Act and section 14(1) of the Police Act. Section 20(1) of the RCMP Act provides that:

The Police Act provides, in section 14(1) that:

Subject to the approval of the Lieutenant Governor in Council, the minister, on behalf of the government, may enter into, execute and carry out agreements with Canada, or with a department, agency or person on its behalf, authorizing the Royal Canadian Mounted Police to carry out powers and duties of the provincial police force specified in the agreement.

This section contains the authority of the Province of British Columbia to contract with the federal government for the services of the RCMP to perform the duties that a provincial police force would otherwise carry out.

[14]       Section 14(2)(b) of the Police Act provides that those RCMP members carrying out the duties of a provincial constable are deemed in fact to be provincial constables:

If an agreement is entered into under subsection (1),

...

every member of the Royal Canadian Mounted Police is, subject to the agreement, deemed to be a provincial constable, ...

[15]       The effect of being deemed to be a provincial police constable affords a member of the RCMP the protection of section 21 of the Police Act. Sections 21(1) and 21(2) of the Police Act provide as follows:

21(1) In this section, "police officer" means a person holding an appointment as a constable under this Act.

(2) No action for damages lies against a police officer or any other person appointed under this Act for anything said or done or omitted to be said or done by him or her in the performance or intended performance of his or her duty or in the exercise of his or her power or for any alleged neglect or default in the performance or intended performance of his or her duty or exercise of his or her power.

By way of example I would refer to Hill v. Hurst (2001) 203 D.L.R. (4^th) 749 at 765 and following where a member of the RCMP was negligent in the operation of his vehicle, but was protected by the effect of section 21(2) of the Police Act. See also, as further examples of the application of section 21 to RCMP officers, Hodgkin v. Port Alberni (City) (1996) 23 B.C.L.R. (3d) 234 (B.C.C.A.) at 241 and following, a decision of Mr. Justice of Appeal Hollinrake, with Justice of Appeal Prowse concurring and the unreported 24 July 2001 B.C. Supreme Court decision in Blackburn v. British Columbia 2001 BCSC 1076 at paragraph 21. Here I would observe that there may still be an action against a municipality, a regional district or the British Columbia Minister, responsible for enforcing the Police Act pursuant to section 21(4) of the Police Act, but that cannot be pursued in the Federal Court. I should also refer to section 21(3) which does not protect a police officer in relation to gross negligence or malicious or wilful misconduct, however, as I will note in due course, the Federal Court has no jurisdiction over individual RCMP constables acting as provincial constables in this instance.

[16]       Mr. Braybrook is not without a remedy, although here I would observe that the accident occurred 7 November 2001 and while the action was started in just short of two years, time ran out under the British Columbia Limitation Act within a week and this motion to strike out, while promptly brought, fell outside the two-year limitation period. Indeed, counsel for the RCMP officers does refer to the Police Act for the proposition, that by sections 21(4)(c) and 11(1)(a) the Minister responsible for administering the Police Act is liable, on behalf of the British Columbia government, for the negligence of police constables. However that is a matter which, if pursued, would have to be pursued in the courts of the province of British Columbia.

[17]       I have also considered the situation, in the Federal Court, should the Plaintiff wish to pursue RCMP officers Kelly and Jacklin on the grounds that having been grossly negligent, which is pleaded, and thus may be a bar to claiming claim the protection of section 21(2) of the Police Act. However the Federal Court lacks jurisdiction to hear any claim against these individual officers. The reasoning here is that ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. (1986) 28 D.L.R. (4^th) 641 (S.C.C.) at 650, requires three conditions to be satisfied before the

Federal Court has jurisdiction. First there must be a statutory grant of jurisdiction, which is not in this instance a problem. Second, and here is where the difficulty lies:

There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.

The fatal defect in the Plaintiff's claim, from the point of view of jurisdiction in the Federal Court, is that the cause of action, quite properly, is in negligence. Here I have been referred to Arsenault v. Canada (1995) 131 D.L.R. (4^th) 105 (F.C.T.D.), in which Mr. Justice Wetston considered an action, basically in negligence for medical malpractice, on the part of three doctors who were employed by the Canadian Armed Forces. At issue was whether there was an existing body of federal law essential to the case, by which the action could be adjudicated. Mr. Justice Wetston pointed out that the Crown Liability and Proceedings Act, which does provide a body of existing federal law for actions against the federal Crown, stopped short of and does not provide a right of action against Crown servants: Crown servants, to be personally liable, must be so under the law of the province in which the tort was committed:

Section 3(a) of the Crown Liability and Proceedings Act grants to the Federal Court of Canada the jurisdiction to entertain a claim against the Crown even though it may not entertain an action against the Crown servants in respect of whom the Crown's vicarious liability arises. A cause of action which is asserted against a servant of the Crown, and which is founded upon the tort of negligence, does not arise from federal law. Therefore, the Federal Court cannot assume jurisdiction over such a claim: Stephens v. Canada (1982), 26 C.P.C. 1, [1982] C.T.C. 138, 40 N.R. 620 sub nom. Stephen's Estate v. M.N.R. (F.C.A.); Nichols v. Canada (1979), 106 D.L.R. (3d) 189, [1980] 1 F.C. 646 (T.D.); Tomossy v. Hammond, [1979] 2 F.C. 232, 13 C.P.C. 150 (T.D.). In the present case, the basis for relief against the individual defendants is the statutory and common law of Ontario -- the province in which the torts allegedly occurred. Thus, this court does not have the jurisdiction to entertain such claims.

                                                                                                              [p. 110 of Arsenault]

[18]       To summarize all of this, so far as negligence is concerned: the RCMP constables are protected from personal liability by sections 14(2)(b) and 21(2) of the Police Act. To the extent that the RCMP officers might lose the protection of the Police Act, by reason of the gross negligence exception in section 21(3)(a), that is a matter over which the Federal Court has no jurisdiction: it would have to be pursued in the courts of the province of British Columbia. Plainly, obviously and beyond doubt there is no cause of action in the Federal Court against the two officers.

[19]       No amendment would be of any assistance as against the two officers. Here I have taken into account what seems to be a suggestion, in Mr. Braybrook's material, that he might amend to claim Charter rights. However the answer to this, so far as the two RCMP officers are concerned, is found in RWDSU v. Dolphin Delivery Ltd. (1986) 33 D.L.R. (4^th) 174 at 198, where Mr. Justice McIntyre notes that the Charter is applicable where governmental action is present but:

Where, however, private party "A" sues private party "B" relying on the common law and where no act of government is relied upon to support the action, the Charter will not apply.

Here, in this aspect of the present action, we have a separate situation in which Mr. Braybrook, an individual, sues two individuals and while they are members of the RCMP, there is no act of government involved and the Charter does not apply. All of this being the case the action as against Corporal Kelly and Constable Jacklin is struck out, without leave to amend.

Cause of Action Against Her Majesty the Queen in Right of Canada

[20]       The parties directly involved in the accident and in the alleged failure to provide timely medical attention were, according to the Statement of Claim and making allowance for the correct names, Corporal Cyril Kelly and Constable Terry Jacklin, although the Statement of Claim does allege negligence by unknown RCMP officers.

[21]       The Plaintiff does not plead, in the Statement of Claim, vicarious liability on the part of Her Majesty the Queen in Right of Canada, for the actions of the RCMP officers. However the Crown Liability and Proceedings Act, R.S. 1985, c. C-50 as amended provides, at paragraph 3(a), for purely statutory liability to the effect that the Crown is vicariously liable for the tortious acts committed by its servants:

The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable

(a) in respect of a tort committed by a servant of the Crown; ...

The observation as to the liability of the Crown being purely statutory may be found in many places, including in White v. Canada (1998) 152 F.T.R. 39 at 47, a decision of Mr. Justice Richard, as he was then. He also pointed out that Crown liability is dependent upon the liability of the servant, as provided for in section 10 of the Crown Liability and Proceedings Act:

Section 10 of the CLPA provides that the Crown may only be liable if the servant would be liable. [Mahoney v. Canada (1986), 38 C.C.L.T. 21; 4 F.T.R. 259 (T.D.)] Section 10 reads as follows:

10 No proceedings lie against the Crown by virtue of paragraph 3(a) in respect of any act or omission of a servant of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or the servant's personal representative.

10 L'Etat ne peut être poursuivi, sur le fondement de l'alinéa 3a), pour les actes ou omissions de ses préposés que lorsuq'il y a lieu en l'occurence, compte non menu de la présente loi, a une action en responsabilité civile délictuelle contre leur auteur ou ses représentants.

The plaintiff has the onus of establishing that a servant of the Crown was negligent and can be held personally responsible for the damages claim. [Meridith v. The Queen, [1955] Ex. C.R. 156]

                                                                                              [White v. Canada at pp. 47-48]

The Federal Court of Appeal upheld Mr. Justice Richard (1999) 252 N.R. 388 as to the summary dismissal of White v. Canada. The case is also interesting, in the present instance, in that the dismissed action was for damages for illegal detention imposed by Crown servants. That has its parallel in the present proceeding in the submission by Mr. Braybrook that he might amend to plead section 7 of the Canadian Charter of Rights (Constitution Act 1982), which I take it to be a reference to deprivation of liberty and security of the person.

[22]       As I have already observed there was a policing agreement between the Canadian government and the British Columbia government pursuant to the RCMP Act and the Police Act of British Columbia, that both of the named Defendant RCMP officers were at all relevant times deemed to be provincial police constables and that by section 21 of the Police Act claims against the two constables are barred.

[23]       The Statement of Claim in this instance does not disclose a reasonable cause of action against the Crown, in this Court, for no claim in negligence lies against the two police constables, or for that matter the other unnamed members of the RCMP. Here I would refer again to ITO-International Terminal Operators Ltd. (supra) for the proposition that the allegations against Corporal Kelly and Constable Jacklin are in tort and, as pointed out in Arsenault (supra) the Federal Court has no jurisdiction over a claim of negligence against a servant of the Crown. In the present instance, the action should have been brought in a court of the province of British Columbia.

[24]       Finally, the main claim against the RCMP officers being struck out, there is no cause of action against the Crown, which may only be vicariously liable. I do not see that any amendment would assist Mr. Braybrook and thus the claim against the Federal Crown is struck out, without leave to amend.

CONCLUSION

[25]       One can to a degree have sympathy for Mr. Braybrook: from his point of view, what should have been expected by the RCMP, that he would try to escape arrest, as he had apparently done in the past, ought to have been predicted. However the extent to which the RCMP should go, to protect someone from their own spur of the moment folly is for another time. The unpredictable turn that all of this took and the resulting injury to Mr. Braybrook is unfortunate. There was, at least at one time, the somewhat outside possibility of a remedy, based on gross negligence, in the British Columbia court system. As it is, the Federal Court action is struck out as against Her Majesty the Queen in Right of Canada, Corporal Kelly and Constable Jacklin.

[26]       As I observed earlier, no one has taken up the cause of the Commissioner, Royal Canadian Mounted Police, who is named as a Defendant and while there is no allegation against him in the Statement of Claim, his status ought not to be dealt with unless, pursuant to a motion to strike out or extend time for a defence, there are representations on his behalf by the Department of Justice and there are none in the present motions and submissions.

(Sgd.) "John A. Hargrave"

    Prothonotary

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       T-2139-03

STYLE OF CAUSE: Brian Braybrook v. HMQ et al.

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                  Hargrave P.

DATED:                                                          March 24, 2005

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: