D.H. et al. v. British Columbia, 2008 BCCA 222

• Judge: Saunders, Kirkpatrick and Tysoe, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 26, 2008
• Jurisdiction: British Columbia
• Citations: 2008 BCCA 222;(2008), 255 B.C.A.C. 293 (CA)

D.H. v. B.C. (2008), 255 B.C.A.C. 293 (CA);

    430 W.A.C. 293

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. JN.012

D.H. (respondent/appellant by cross-appeal/plaintiff) and J.H., an infant by his guardian ad litem, The Public Guardian and Trustee, and E.H., an infant by her guardian ad litem, The Public Guardian and Trustee (respondents/plaintiffs) v. Her Majesty the Queen in Right of the Province of British Columbia (appellant/respondent by cross-appeal/defendant)

(CA034744; 2008 BCCA 222)

Indexed As: D.H. et al. v. British Columbia

British Columbia Court of Appeal

Saunders, Kirkpatrick and Tysoe, JJ.A.

May 26, 2008.

Summary:

Kline was on probation for sexual offences against boys. His probation officer approved Kline residing in the upstairs suite of a split level house. D.H., a single mother with two young children (boy and girl), lived in the downstairs suite. Kline's probation order prohibited him from having unsupervised contact with anyone under the age of 18 and prohibited him from attending within four blocks of any place (schools, playgrounds, etc.) where children congregated. Kline befriended D.H. and had unsupervised contact with her son, whom Kline sexually assaulted. D.H. had been advised by the probation officer that Kline was on probation for sexual offences and was prohibited from having unsupervised contact with anyone under age 18. D.H. told the probation officer that Kline was never alone with her children, when in fact he was. The probation officer declined to answer D.H.'s inquiry as to what Kline had been convicted of. D.H. was never told he had committed sexual offences against children. D.H. brought an action against Kline and the province. The province was allegedly directly liable in negligence and vicariously liable for the negligence of the probation officer. The province did not contest vicarious liability, but submitted that neither it nor the probation officer were negligent. The province also pleaded that D.H. was contributorily negligent in lying to the probation officer about Kline having no contact with her children and permitting him unsupervised contact after being advised not to do so.

The British Columbia Supreme Court found that Kline was 75% at fault, the province was negligent and 20% at fault and D.H. was contributorily negligent and 5% at fault. Kline and the province were jointly and severally liable. The court awarded $540,000 general damages. The province appealed, submitting that, inter alia, the trial judge erred (1) in finding that the probation officer owed a duty of care to D.H.; (2) in finding that the duty of care, if it existed, was breached; (3) in finding causation; (4) in limiting D.H.'s liability to 5%; and (5) in awarding excessive damages. D.H. cross-appealed, submitting that no fault should have been attributed to her.

The British Columbia Court of Appeal allowed the appeal in part and dismissed the cross-appeal. The probation officer owed D.H. a duty of care and was negligent (province vicariously liable) for permitting Kline to reside where children were living in the bottom suite and the contact prohibited was inevitable. The court affirmed the damage award. The trial judge erred in attributing fault 20% to the province and 5% to D.H. D.H. lied to the probation officers about leaving her children alone with Kline and permitted continued unsupervised contact with her son after being advised that Kline's probation order prohibited him from being left alone with her children. The court re-apportioned liability equally between the province and D.H. (12.5% each).

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - Kline, on probation for sexual offences against young boys, was assessed as a high risk to re-offend - Kline's probation officer approved Kline living in the upstairs suite of a residence where a single mother and her two young children lived downstairs - The probation order prohibited Kline from having unsupervised contact with persons under age 18 - D.H. was advised by the probation officer that Kline was on probation for sexual offences and was prohibited from having unsupervised contact with anyone under age 18 - D.H. told the probation officer that Kline was never alone with her children, when in fact he was - The probation officer declined to answer D.H.'s inquiry as to what Kline had been convicted of - D.H. was not told that Kline committed sexual offences against children and that her son fit the profile of previous victims - Kline had sexually assaulted D.H.'s sons after befriending D.H. and being left alone with the son - The probation officer was negligent (province vicariously liable) in permitting Kline to reside in the same home where children were living and where the prohibited contact was inevitable - The trial judge awarded $100,000 general damages for nonpecuniary loss, $240,000 for future care and $175,000 for loss of future income - The British Columbia Court of Appeal dismissed the province's appeal from the damage awards - The nonpecuniary award was not inordinately high and there was no error warranting interfering with the other awards - See paragraphs 91 to 100.

Torts - Topic 48.3

Negligence - Standard of care - Particular persons or relationships - Probation officers - Kline, on probation for sexual offences against young boys, was assessed as a high risk to re-offend - Kline's probation officer approved Kline living in the upstairs suite of a residence where a single mother and her two young children lived downstairs - The probation order prohibited Kline from having unsupervised contact with persons under age 18 - D.H. was advised by the probation officer that Kline was on probation for sexual offences and was prohibited from having unsupervised contact with anyone under age 18 - D.H. told the probation officer that Kline was never alone with her children, when in fact he was - The probation officer declined to answer D.H.'s inquiry as to what Kline had been convicted of - D.H. was not told that Kline committed sexual offences against children and that her son fit the profile of previous victims - Kline had sexually assaulted D.H.'s sons after befriending D.H. and being left alone with the son - Kline was 75% at fault, the province was 20% at fault and D.H. was contributorily negligent and 5% at fault - The British Columbia Court of Appeal agreed with the trial judge that the probation officer was negligent (province vicariously liable) in permitting Kline to reside in the same home where children were living and where the prohibited contact was inevitable - The court did not agree that the probation officer's failure to provide D.H. with the particulars of Kline's criminal record constituted negligence, where D.H. was clearly warned not to leave the children alone with Kline even for a few minutes - The trial judge erred in attributing fault 20% to the province and 5% to D.H. - D.H. lied to the probation officers about leaving her children alone with Kline and permitted continued unsupervised contact with her son after being advised that Kline's probation order prohibited him from being left alone with her children - The court re-apportioned liability equally between the province and D.H. (12.5% each) - See paragraphs 63 to 87, 108 to 115.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Torts - Topic 9154.1 ].

Torts - Topic 79

Negligence - Duty of care - Factors limiting scope of duty of care - [See Torts - Topic 9154.1 ].

Torts - Topic 6603

Defences - Contributory negligence - General - Apportionment of fault - General - [See Torts - Topic 48.3 ].

Torts - Topic 9154.1

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Probation officers - The probation officer's employer (province) submitted that absent malice or bad faith the probation officer, as a public official, owed no private law duty of care respecting policy decisions, as opposed to operational decisions - The British Columbia Court of Appeal held that the probation officer owed the mother a duty of care - The relationship between the probation officer and the mother disclosed sufficient foreseeability and proximity to establish a prima facie duty of care - Given Kline's record, his recidivism assessment and the fact that the mother's male child fit the profile of Kline's previous victims, the risk of harm was foreseeable - There were no residual policy considerations to negating or limiting that duty of care - The probation officer, in supervising Kline under his probation order, was functioning on an operational level - The probation officer, although having some discretion, was managing the parameters imposed by the sentencing judge - The probation officer's function did not reach "the high policy level contemplated by the authorities as required before immunity from liability is assured" - See paragraphs 28 to 62.

Cases Noticed:

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al. (2007), 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 28].

Home Office v. Dorset Yacht Co., [1970] 2 All E.R. 294; [1970] A.C. 1004 (H.L.), refd to. [para. 30].

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 All E.R. 492 (H.L.), refd to. [para. 30].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; 64 D.L.R.(4th) 689, refd to. [para. 30].

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. 30].

B.D. et al. v. Children's Aid Society of Halton Region et al. (2007), 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 30].

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

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1; 112 D.L.R.(4th) 1, refd to. [para. 30].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 35].

D.N. et al. v. Oak Bay (District) et al., [2005] B.C.T.C. 1412; 261 D.L.R.(4th) 692; 2005 BCSC 1412, refd to. [para. 51].

A.G. v. Superintendent of Family and Child Services (B.C.) (1989), 38 B.C.L.R.(2d) 215; 61 D.L.R.(4th) 136 (C.A.), refd to. [para. 82].

Hanke v. Resurfice Corp., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 88].

Nance v. British Columbia Electric Railway Co., [1951] A.C. 601; 2 W.W.R.(N.S.) 665 (H.L.), refd to. [para. 95].

Cory v. Marsh (1993), 22 B.C.A.C. 118; 33 W.A.C. 118; 77 B.C.L.R.(2d) 248 (C.A.), refd to. [para. 95].

S.Y. v. F.G.C. (1989), 78 B.C.A.C. 209; 128 W.A.C. 209; 26 B.C.L.R.(3d) 155 (C.A.), refd to. [para. 96].

Revici v. Prentice Hall Inc. et al., [1969] 1 All E.R. 772 (C.A.), refd to. [para. 102].

Lieberman et al. v. Business Development Bank of Canada, [2006] B.C.A.C. Uned. 62; 2006 BCCA 300, refd to. [para. 105].

Counsel:

A.K. Fraser and N.H. Barnes, for the appellant;

H.A. Mickelson and A.S. Dosanjh, for the respondents;

C. Jeklin, representative of the Public Guardian and Trustee.

This appeal and cross-appeal were heard on September 17-19, 2007, at Vancouver, B.C., before Saunders, Kirkpatrick and Tysoe, JJ.A., of the British Columbia Court of Appeal.

On May 26, 2008, Saunders, J.A., delivered the following judgment for the Court of Appeal.