Bergen v. Guliker et al., (2015) 374 B.C.A.C. 80 (CA)

• Judge: Saunders, Kirkpatrick and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 22, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 374 B.C.A.C. 80 (CA);2015 BCCA 283

Bergen v. Guliker (2015), 374 B.C.A.C. 80 (CA);

    642 W.A.C. 80

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JN.051

Inna Bergen (respondent/plaintiff) v. Gerald Guliker, deceased, the Minister of Public Safety and Solicitor General of British Columbia, Her Majesty the Queen in Right of Canada as represented by the Attorney General of Canada (respondents/defendants) and Insurance Corporation of British Columbia (respondent/third party) and the Minister of Public Safety and Solicitor General of British Columbia, replaced by and now known as the Minister of Justice and Attorney General of British Columbia (appellants/further third parties)

(CA41566)

Dmitriy Igans and Alla Kazavcinska (respondents/plaintiffs) v. Gerald Guliker and the Estate of Gerald Guliker, deceased, and the Attorney General of Canada and the Minister of Public Safety and Solicitor General for the Province of British Columbia on behalf of Her Majesty the Queen in Right of the Province of British Columbia (respondents/defendants) and Insurance Corporation of British Columbia (respondent/third party) and the Minister of Public Safety and Solicitor General of British Columbia, replaced by and now known as the Minister of Justice and Attorney General of British Columbia (appellants/further third parties)

(CA41567)

Inna Bergen (respondent/plaintiff) v. Gerald Guliker, deceased, the Minister of Public Safety and Solicitor General of British Columbia, Her Majesty the Queen in Right of Canada as represented by the Attorney General of Canada (respondents/defendants) and Insurance Corporation of British Columbia (respondent/third party) and the Minister of Public Safety and Solicitor General of British Columbia, replaced by and now known as the Minister of Justice and Attorney General of British Columbia (appellants/further third parties)

(CA41568)

(2015 BCCA 283)

Indexed As: Bergen v. Guliker et al.

British Columbia Court of Appeal

Saunders, Kirkpatrick and D. Smith, JJ.A.

June 22, 2015.

Summary:

A dispatch was sent to members of the Royal Canadian Mounted Police to "Be On the Lookout For" (BOLF) Guliker who was suicidal, arrestable for breach of a no-contact order, and had threatened to jump or drive into traffic. Two officers, acting in their capacity as provincial constables and each driving a marked police vehicle, approached Guliker who was seated in his vehicle. Guliker fled at a high rate of speed. The officers followed him and a pursuit ensued. Guliker attempted to take a curve at 136 kph, crossed the centre line and collided head-on with a vehicle driven by Bergen. Bergen and Guliker died at the scene. Bergen's widow sued for damages under the Family Compensation Act. The two adult passengers in the Bergen vehicle each sued Guliker and the Minister of Justice and Attorney General of British Columbia (the Province), alleging negligence and claiming damages for injuries suffered. The Insurance Corporation of British Columbia filed a third party notice in which it denied coverage for Guliker, and a statement of defence in which it denied liability for the accident. An order was made severing the issues of liability and quantum in all three actions, and directing that the issue of liability in each of the actions be heard together.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 5, apportioned liability 80% to Guliker and 20% to the Province. The court held that the RCMP owed a private law duty of care to other motorists in relation to Guliker's actions when they conducted their pursuit. That duty extended to a time that preceded the actual pursuit (to the BOLF dispatch). The court concluded that (1) the RCMP breached the standard of care by failing to conduct proper risk assessments and by not having a plan in place that recognized the likelihood of Guliker fleeing in his vehicle before they commenced pursuit; and (2) but for the police pursuit, the collision would not have occurred. The Province appealed.

The British Columbia Court of Appeal allowed the appeal and ordered a new trial. There was no recognized duty of care before a police pursuit commenced and therefore the trial judge should have conducted the two stage inquiry developed in Anns v. Merton London Borough Council (1978, HL), as adopted and refined in Cooper v. Registrar of Mortgage Brokers (B.C.) et al. (2001, SCC) to determine if such a duty of care should be recognized. The trial judge did not conduct that analysis and it followed that the finding of a breach of the standard of care before the commencement of the pursuit could not be sustained. Further, while there was a recognized duty of care once a police pursuit had begun, the content of that standard of care, in the circumstances, required expert evidence to determine what a reasonable police officer in similar circumstances should have done. In the absence of such evidence, the trial judge's finding that the standard was breached could not be sustained.

Evidence - Topic 7061

Opinion evidence - Expert evidence - Particular matters - Professional standards of care - See paragraphs 103 to 139.

Police - Topic 5027

Actions against police - Negligence - Vehicle or foot pursuit - See paragraphs 86 to 139.

Police - Topic 5030

Actions against police - Negligence - Duty to public - See paragraphs 86 to 139.

Torts - Topic 34

Negligence - Standard of care - Evidence and proof - See paragraphs 103 to 139.

Torts - Topic 48

Negligence - Standard of care - Particular persons and relationships - Police officers - See paragraphs 103 to 139.

Torts - Topic 76

Negligence - Duty of care - General principles - See paragraphs 59 to 85.

Torts - Topic 78

Negligence - Duty of care - Effects of statutory or policy precautions or safeguards on the scope of the duty of care - See paragraphs 78 to 85.

Torts - Topic 9154

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Police office and authorities - See paragraphs 86 to 102.

Cases Noticed:

Maddex v. Sigouin et al. (2014), 356 B.C.A.C. 230; 610 W.A.C. 230; 2014 BCCA 213, refd to. [para. 32].

Doern v. Phillips Estate et al., [1994] B.C.T.C. Uned. H09; 2 B.C.L.R.(3d) 349 (S.C.), affd. (1997), 100 B.C.A.C. 5; 163 W.A.C. 5; 43 B.C.L.R.(3d) 53 (C.A.), refd to. [para. 33].

Radke v. M.S. et al., [2005] B.C.T.C. 1355; 2005 BCSC 1355, affd. (2007), 239 B.C.A.C. 296; 396 W.A.C. 296; 2007 BCCA 216, refd to. [para. 33].

Burbank v. R.T.B. et al., [2005] B.C.T.C. 1506; 2005 BCSC 1506, affd. (2007), 239 B.C.A.C. 252; 396 W.A.C. 252; 2007 BCCA 215, refd to. [para. 33].

Roy et al. v. British Columbia (Attorney General) (2005), 208 B.C.A.C. 222; 344 W.A.C. 222; 2005 BCCA 88, refd to. [para. 33].

Camaso Estate et al. v. Egan et al. (2013), 331 B.C.A.C. 258; 565 W.A.C. 258; 2013 BCCA 6, leave to appeal refused (2013), 463 N.R. 397; 355 B.C.A.C. 320; 607 W.A.C. 320 (S.C.C.), refd to. [para. 33].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 47].

Clements v. Clements (2012), 431 N.R. 198; 331 B.C.A.C. 1; 565 W.A.C. 1; 2012 SCC 32, refd to. [para. 57].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 59].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 59].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 60].

Design Services Ltd. et al. v. Canada, [2008] 1 S.C.R. 737; 374 N.R. 77; 2008 SCC 22, refd to. [para. 60].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 60].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 62].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 66].

Dobson v. Dobson and Carter, [1999] 2 S.C.R. 753; 242 N.R. 201; 214 N.B.R.(2d) 201; 547 A.P.R. 201, refd to. [para. 67].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 73].

Fullowka et al. v. Pinkerton's of Canada et al., [2010] 1 S.C.R. 132; 398 N.R. 20; 474 A.R. 1; 479 W.A.C. 1; 2010 SCC 5, refd to. [para. 74].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 78].

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 78].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

Los Angeles Salad Co. et al. v. Canadian Food Inspection Agency et al. (2013), 334 B.C.A.C. 24; 572 W.A.C. 24; 2013 BCCA 34, leave to appeal refused (2013), 464 N.R. 398; 357 B.C.A.C. 320; 611 W.A.C. 1 (S.C.C.), refd to. [para. 79].

Krawchuk v. Scherbak et al. (2011), 279 O.A.C. 109; 2011 ONCA 352, leave to appeal refused (2011), 430 N.R. 396; 297 O.A.C. 395 (S.C.C.), refd to. [para. 108].

Meady et al. v. Greyhound Canada Transportation Corp. et al. (2015), 329 O.A.C. 173; 2015 ONCA 6, refd to. [para. 108].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 109].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 109].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 110].

D.H. et al. v. British Columbia (2008), 255 B.C.A.C. 293; 430 W.A.C. 293; 2008 BCCA 222, refd to. [para. 111].

Noel v. Botkin et al., [1995] B.C.T.C. Uned. 730; 9 B.C.L.R.(3d) 21 (S.C.), refd to. [para. 113].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 115].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 2009 ONCA 624, refd to. [para. 116].

R. v. Aitken (D.C.M.) (2012), 319 B.C.A.C. 125; 542 W.A.C. 125; 2012 BCCA 134, refd to. [para. 116].

Masterpiece Inc. v. Alavida Lifestyles Inc. (2011), 416 N.R. 307; 2011 SCC 27, refd to. [para. 117].

R. v. Sekhon (A.S.) (2014), 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 117].

Park Place Centre Ltd. v. Ultramar Ltd. et al. (2011), 301 N.S.R.(2d) 200; 953 A.P.R. 200; 2011 NSCA 29, refd to. [para. 131].

G & S Haulage Ltd. v. Park Place Centre Ltd. - see Park Place Centre Ltd. v. Ultramar Ltd. et al.

Authors and Works Noticed:

Klar, Lewis N., Tort Law (4th Ed. 2008), pp. 382, 383 [para. 131].

Counsel:

M. Taylor, Q.C., D. Kwan and S. Eustace, for the appellants;

J.A. Pankiw-Petty and S. Turner, for the respondent, I. Bergen;

D. Quinlan, Q.C., and J. Bye, for the respondent, Insurance Corporation of British Columbia.

This appeal was heard at Vancouver, British Columbia, on November 20 and 21, 2014, by Saunders, Kirkpatrick and D. Smith, JJ.A., of British Columbia Court of Appeal. D. Smith, J.A., delivered the following reasons for judgment for the court on June 22, 2015.