Clark Wilson LLP Insurance Bulletin
Case Law Review Archive
To Protect and … PAY
The case of McVea (Guardian ad litem) v. British Columbia (Attorney General) arose out of a fatal motor vehicle accident which occurred when a police officer was pursuing T.B., a 14-year old unlicenced and therefore uninsured driver of a stolen vehicle who collided with a vehicle driven by Brenda Hohn, causing her death. Her family brought an action against both T.B. and the police officer for compensation under the Family Compensation Act.
By virtue of the Police Act R.S.B.C. 1996, c. 367 s. 21 “no action for damages lies against a police officer” for negligence in the performance of their duty. However, s. 11 of the Police Act transfers any liability to the Attorney General of British Columbia (AGBC) by making the AGBC “jointly and severally liable for torts committed by provincial constables” in the performance of their duties.
At trial, liability for the motor vehicle accident was apportioned 10% to the police officer (with the AGBC being vicariously liable) and 90% to T.B., the uninsured youth. ICBC refused to pay out any portion of the judgement and the issue became whether the AGBC was jointly and severally liable to the Plaintiffs for the entire judgement or just the 10% apportioned to the polic officer.
The answer to this question rested on the application of section 4 of the Negligence Act R.S.B.C. 1996 c. 333 which provides that:
...
Except as provided in section 5 if 2 or more persons are found at fault
(a) they are jointly and severally liable to the person suffering the damage or loss,
(emphasis added)
The AGBC argued only the police officer was found to be at “fault” and that they, by virtue of the Police Act were merely vicariously “liable” for the police officer’s acts and attempted to draw a distinction between the words “fault” and “liability”. Neither the trial judge nor the Court of Appeal acceded to this argument. In upholding the trial decision the Court of Appeal held that:
[23] The interpretation of s. 4(2)(a) of the Negligence Act in these circumstances is straightforward. Under s. 11(1) of the Police Act, Constable McBryan, who cannot be sued for damages by virtue of s. 21(2) of the Police Act, and the AGBC are jointly and severally liable for the “tort committed” by Constable McBryan, for which he was found to be “at fault”, together with T.B. Under s. 4(2)(a) of the Negligence Act, the AGBC is thus jointly and severally liable with T.B. for the tort committed by Constable McBryan.
[24] The AGBC’s argument that it is required to have been found to be “at fault” to be found to be jointly and severally liable with T.B. for the family’s damages is simply unsound.
The trial judge had also held that ICBC was required to indemnity the AGBC for a portion of the 90% attributable to T.B. Following trial, the AGBC paid the deceased’s family 100% of the damages and took an assignment from them of their rights against ICBC. On cross-appeal in the Court of Appeal ICBC argued that it was not required to indemnify the AGBC for any portion of the judgement against the uninsured and unlicensed driver. The Court of Appeal agreed and held that while the Negligence Act allowed the AGBC to recover as against the uninsured driver neither the uninsured driver nor the AGBC had any right to claim contribution from ICBC under the deceased’s underinsured motorist insurance coverage. The Court of Appeal did comment that whether “the assignment of the family’s rights, taken subsequent to the order of the chambers judge, would be effective to give the AGBC the entitlement to claim anything from ICBC, is not before this Court.”
The sole issue before the Supreme Court of Canada was the extent of the AGBC’s vicarious liability under the Police Act. In very brief reasons, Mr. Justice LeBel dismissed the appeal holding that:
9 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.
10 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.
11 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.
The practical result of this decision is that any entity who faces statutory vicarious liability will be subject to joint and several liability under the Negligence Act. Litigation to determine the effect of the AGBC’s assignment of the Plaintiffs rights as against ICBC remains underway in British Columbia and following a decision will be the topic of a further e-mail bulletin.
The reasons for judgement in the Court of Appeal can be found at:
http://www.canlii.org/en/bc/bcca/doc/2005/
2005bcca104/2005bcca104.html
and the Supreme Court of Canada judgement at:
http://scc.lexum.umontreal.ca/en/2008/2008scc3/
2008scc3.html
If you have any questions about the decision or any other insurance matter, please contact Krista Prockiw (telephone 604-643-3105 e-mail kxp@cwilson.com) or any other member of the Clark Wilson LLP Insurance Practice Group.
