of 68
R. v. Price, 2001 BCSC 1494 (CanLII)
Date:
2001-10-25
File number:
L010991
Other citations:
[2001] BCJ No 2284 (QL) — [2001] BCTC 1494 — 109 ACWS (3d) 400
Citation:
R. v. Price, 2001 BCSC 1494 (CanLII), <http://canlii.ca/t/4wqg>, retrieved on 2020-03-08
Docket:
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L010991
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Registry: Vancouver
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IN THE SUPREME COURT OF BRITISH COLUMBIA
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BETWEEN:
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CATHIE MAY PRICE
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PLAINTIFF
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AND:
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HER MAJESTY THE QUEEN IN RIGHT OF
THE PROVINCE OF BRITISH COLUMBIA
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DEFENDANT
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REASONS FOR JUDGMENT
OF THE
HONOURABLE MR. JUSTICE MEIKLEM
(IN CHAMBERS)
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Counsel for the Plaintiff:
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W.N. Fritz
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Counsel for the Defendant:
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A.K. Fraser
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Date and Place of Hearing:
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July 5, 2001
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Vancouver, BC
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[1] The defendant has applied, pursuant to rule 19(24)(a), for an order striking the statement of claim as disclosing no reasonable claim and dismissing the action. Special costs are also sought.
(style of cause as above)
Statement of Claim
1. The plaintiff, Cathie Price ("Mrs. Price") resides at 1045 Cortell Street, North Vancouver and is a disabled glasscrushing machine operator employed by the Liquor Distribution Branch ("the defendant LDB"), a branch of the Government of the Province of British Columbia.
2. The defendant LDB is a Provincial Crown branch responsible for the retail distribution of liquor in the Province of British Columbia.
3. In or about August or September, 1998, the defendant LDB implemented a policy of purchasing and installing glasscrushing machines ("Glasscrushers") for use in crushing empty bottles at the Defendant LDB's retail outlets across the Province.
4. During and following the installation of the Glasscrushers, the LDB knew that the use of glasscrushing technology was harmful to the health and safety of LDB workers, including the plaintiff Mrs. Price.
5. The Plaintiff Mrs. Price and other LDB employees became sick after operating the Glasscrushers.
6. In particular the Plaintiff Mrs. Price, developed chronic upper respiratory illness as a result of her exposure to glass dust, and infectious spores and fungus, produced by the Glasscrushers, and other LDB workers suffered similar disabling disease.
7. The sickness suffered by the plaintiff, Mrs. Price, and other LDB workers was a predictable outcome of the workers' exposure to Glasscrushers, and this fact was known by the defendant LDB.
8. Between the date the Glasscrushers were installed and the present, various individuals and organizations including the BC Government Employees Union have implored the LDB to stop using the Glasscrushers.
9. The LDB's refusal to stop exposing its employees to glass dust, infectious spores and fungus derives from an improper motive that falls outside the lawful mandate of government.
10. The plaintiff Mrs. Price seeks to represent the following class of persons:
all LDB employees exposed to glass dust as a result of the use of Glasscrushers.
11. The plaintiff Mrs. Price seeks the following relief on her own behalf and on behalf of the class:
(a) an injunction restraining the LDB from the use of Glasscrushers;
(b) an order certifying the proceeding as a class proceeding;
(c) damages for governmental abuse of power, including general, special, aggravated and punitive damages;
(d) costs pursuant to section 37(2) of the Class Proceedings Act RSBC 1996,c.50;
(e) Interest pursuant to the Court Order Interest Act, RSBC 1996 c.79;
(f) such other relief as this Honourable Court considers just.
PLACE OF TRIAL: Vancouver, British Columbia.
[3] Counsel have agreed that the issue of whether Mrs. Price's claim is barred by the provisions of the Workers Compensation Act R.S.B.C. 1996 c.492 is not before me, and is a question that is within the exclusive jurisdiction of the Workers Compensation Board.
[4] Paragraphs 9 and 11(c) of the statement of claim are the ones purporting to set out the cause of action. Combining these paragraphs, we glean that the claim is for governmental abuse of power in refusing, for an improper motive, to stop exposing employees to hazardous dust, spores and fungus. This begs the question as to what improper motive is alleged - none is pleaded. I posed that question to plaintiff's counsel (whose firm did not prepare the pleading), eliciting the response that he thought the improper motive contemplated was "saving face" for a decision previously made.
[5] Somewhat generously, counsel for the defendant suggested that the claim was perhaps intended to be framed in the tort known as misfeasance in public office, and goes on to make compelling submissions to the effect that the material facts essential to make out a claim for that tort are not plead.
[6] Clearly there is a distinct difference between misfeasance in public office and governmental abuse of power, that is, abuse of power by government itself. The latter not being a tort known to the common law, counsel for the plaintiff supports the pleading on the basis that it is sufficient to enable the defendant to correctly identify the intended cause of action. He suggests that the defendant is really complaining about a lack of particulars. I presume, however, that the plaintiff contemplates amending the statement of claim so that it at least specifically pleads misfeasance in public office.
[7] The test to be applied on striking out a pleading under rule 19(24)(a) was reaffirmed in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R.959, namely: whether it is "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action. That the test is a stringent one is made clear in the oft-quoted passage at page 980 in the report:
Thus, the test in Canada governing the application of provisions like rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C.O.18, r.19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defense should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in rule 19(24) of the British Columbia Rules of Court should the relevant portions of the plaintiff's statement of claim be struck out under rule 19(24)(a).
[8] Furthermore, in assessing the pleading "such amendments as might reasonably be made" are to be considered in support of the pleading. (Minnes v. Minnes (1962), 1962 CanLII 350 (BC CA), 39 W.W.R. 112 (B.C.C.A.). The power to strike out a pleading on the ground that it discloses no reasonable cause of action should be exercised only where the case is absolutely beyond doubt. (McNaughton v. Baker (1988), 1988 CanLII 3036 (BC CA), 25 B.C.L.R.(2d) 17)
[9] The ingredients of the tort of misfeasance in public office are set out in sequenced paragraphs in Three Rivers District Council and others v. Bank of England (No. 3), [2000] W.L.R 1220 (H.L.) starting at page 1230. They are as follows:(paraphrased)
1. The defendant must be a public officer;
2. There must be an exercise of power as a public officer;
3. There must be a state of mind of the defendant that is either targeted malice or he must have acted in the knowledge of, or with reckless indifference to, the legality of his act and in the knowledge of, or with reckless indifference to, the probability of causing injury to the plaintiff;
4. There must be a duty to the plaintiff or sufficient interest in the plaintiff to found a legal standing to sue;
5. The exercise of power must have caused loss to the plaintiff;
[10] Counsel for the defendant submits that logically the Crown cannot itself be the public office-holder with the necessary subjective intention to injure the plaintiff or subjective knowledge or reckless indifference as to the legality and probability of causing harm. This point was made in the Three Rivers case where Lord Steyn said at page 1235:
It is undoubtedly right, as counsel for the plaintiffs pointed out, that the mental element required for the tort of misfeasance in public office means that it is not an effective remedy to deal with state liability for breaches of Community law.
[11] Although the Crown might be vicariously liable for the misfeasance in public office of one or more of its employees, the pleading must be clear as to which office-holder has the necessary intention. Counsel for the plaintiff failed to assert that there are any identifiable individual Crown employees who might be named. From that fact and from the fact that counsel was also guessing at what improper or illegal purpose might underlie the Liquor Distribution Branch's refusal to stop exposing its employees to hazardous dust and spores, I infer that identification of individuals with the necessary subjective state of mind necessary to establish the cause of action is not possible.
[12] The defendant further argued that the mere fact that the Liquor Distribution Branch was created by statute does not mean that all of its employees' actions are the exercise of power in public office or the exercise of a public law power. In other words, one must separate actions that are the exercise of a discretionary power in public office from ordinary or merely operational actions which do not involve the use of any legislative or administrative power. The statement of claim, it is argued, does not identify the exercise of any public law power the abuse of which could constitute the tort of misfeasance in public office. The employees of the Liquor Distribution Branch were simply working for the Crown engaged in the business of operating a liquor distribution business in the same way as they would work for any private employer.
[13] In The Estate of Manish Odhavji and others v. Woodhouse and others, (December 5 2000) Ontario Court of Appeal Docket C31438, the court was concerned with the elements of the tort of misfeasance in public office and whether a breach by the defendant police officers of a duty specifically imposed by statute to co-operate fully with a special investigations unit in the conduct of investigations could be considered an abuse of power. The distinction between a breach of duties imposed on a public officer and the abuse of power necessary for the tort was central to the majority decision. At paragraphs 26, 30 and 31, the majority reasons stated:
........The defining element of the tort apparent from the case law as it developed was misfeasance in the exercise of the powers held by a public officer. The tort is constituted by a public officer doing, or failing to do, an act which is an abuse of the powers adherent to his or her office, and which results in damage to another. Thus, the central focus of the tort is a public officer who is invested with a power to act for the benefit of the public and who abuses the power by exceeding it, failing to exercise it, or, in some cases, purporting to exercise a power which he or she does not hold.
........
In the passage from the reasons of Day J. which I have quoted in paragraph [16] he found that Woodhouse and Gerrits breached duties imposed by s.113(9) and s.42 of the Act. It follows that he erred in equating the obligation of police officers to cooperate with an investigation conducted by the S.I.U. found in s.113(9)of the Act with the exercise of an executive or administrative power. In doing so,he failed to recognize that the tort of misfeasance in public office responds only to the abusive exercise of legislative or administrative power. [Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121] and [Francoeur v. Canada (1994), 78 F.T.R. 109 (T.D.)] or are but two of the many authorities which underscore that the defining feature of the tort of misfeasance in public office is the exercise of legislative or administrative powers by their recipients for purposes incompatible with those envisaged by the legislation under which they derive such powers. In short, in allegedly failing to cooperate with the S.I.U investigation Woodhouse and Gerrits did not misuse a public office through the abuse of a statutory or prerogative power.
Although Day J. correctly identified the absence of a pleaded malicious intention to harm in the statement of claim, this constituted only one of the missing elements of the claim. While granting leave to amend the statement of claim may have cured this defect in the pleading, it could not cure the failure to plead that Woodhouse and Gerrits were engaged in the abusive exercise of a power. Where there is no power to be exercised, an essential ingredient of the tort of misfeasance in public office is missing. Thus, even if the plaintiffs amend their statement of claim so that it is framed in malice, they cannot overcome the fundamental fact that the alleged breach of section 113(9) of the Police Services Act is not an abuse of power held by a public official. It follows that the statement of claim is radically flawed and cannot be cured.
[14] While making internal management decisions regarding workplace safety in a liquor distribution business is arguably closer, in general terms, to exercising a power than is a policeman's duty to co-operate with special unit investigators, it is not a statutory or prerogative power adherent to a public office that impinges upon the public intended to be served. Such decisions are not in the category of conduct that falls within the ambit of the special tort of misfeasance in public office.
[15] The statement of claim does not attempt to plead a novel cause of action, rather it is an attempt to plead an established cause of action in circumstances where it is inapplicable and has no chance of success. I find that the statement of claim is radically flawed and cannot be cured by amendment to disclose a reasonable claim. The statement of claim is ordered struck out and the plaintiff's action is dismissed. The defendant is entitled to costs on scale 3.
"I.C. Meiklem, J."
The Honourable Mr. Justice I.C. Meiklem
The Honourable Mr. Justice I.C. Meiklem
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