Gulkison v. Vancouver Police Board et al., 2015 BCCA 361

• Judge: Newbury, Saunders and Harris, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 18, 2015
• Jurisdiction: British Columbia
• Citations: 2015 BCCA 361;(2015), 376 B.C.A.C. 139 (CA)

Gulkison v. Police Bd. (2015), 376 B.C.A.C. 139 (CA);

    646 W.A.C. 139

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. AU.023

Ross Gulkison (respondent/appellant on cross-appeal/plaintiff) v. Vancouver Police Board (appellant/respondent on cross-appeal/defendant)

(CA41824; 2015 BCCA 361)

Indexed As: Gulkison v. Vancouver Police Board et al.

British Columbia Court of Appeal

Newbury, Saunders and Harris, JJ.A.

August 17, 2015.

Summary:

The plaintiff alleged that he was abused and sexually assaulted between 1957 and 1969 by his cousin who was, then, a member of the Vancouver Police Department. At that time, the police department was administered by the Board of Police Commissioners. In 1974, with the enactment of the Police Act and by repeal of portions of the Vancouver Charter, the Vancouver Police Board was created and the Board of Police Commissioners ceased to exist, have responsibilities or exercise jurisdiction. The plaintiff sued the Vancouver Police Board for damages arising from the abuse and sexual assault by his cousin, asserting that it was responsible for the liabilities of the Board of Police Commissioners. The Vancouver Police Board applied for summary dismissal of the action on the basis that it had no liability for events that ended in 1969.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 669, dismissed the application. The court found that the Board of Police Commissioners and the Vancouver Police Board were separate entities. However, whatever liability the Board of Police Commissioners might have had to the plaintiff had accrued to the Vancouver Police Board. The Vancouver Police Board appealed.

The British Columbia Court of Appeal allowed the appeal. The court agreed that the Board of Police Commissioners and the Vancouver Police Board were separate entities. The approach asserted by the plaintiff was contrary to the express language of the Vancouver Charter and to the approach of the Police Act. The Vancouver Police Board was not intended to be a continuation of the Board of Police Commissioners. The fact that the Board of Police Commissioners met during the 44 day hiatus between the repeal of the Vancouver Charter and the enactment of the Police Act did not give the Board of Police Commissioners continuing existence. To hold otherwise would be to write statutory language where none existed. Absent express provision for assumption by the Vancouver Police Board of liabilities of the Board of Police Commissioners, the Vancouver Police Board had only those responsibilities and liabilities as the Police Act determined. The presumption that the legislature did not intend to abolish or interfere with rights did not apply. No vested right was interfered with. The plaintiff retained any rights that he had against the Board of Police Commissioners that he had in 1974. Nor could the Vancouver Police Board be held vicariously liable for events prior to 1974. The conclusion below did not reflect the jurisprudence and was inconsistent with the office of constable at common law. There was no vicarious liability by the Board of Police Commissioners that could be assumed by a subsequent body. The action was dismissed.

Police - Topic 5003

Actions against police - General - Actions against police board, municipality or solicitor general for actions by police officer - See paragraphs 27 to 47.

Statutes - Topic 513

Interpretation - General principles - Omissions or gaps - See paragraphs 20 to 26.

Statutes - Topic 2263

Interpretation - Presumptions and rules in aid - Against interference with vested rights - See paragraphs 27 to 47.

Statutes - Topic 6903

Operation - Commencement, duration and repeal - Repeal - Preservation of rights acquired or accrued under repealed statute - See paragraphs 27 to 47.

Statutes - Topic 6906

Operation and effect - Commencement, duration and repeal - Repeal - Effect of repeal - General - See paragraphs 20 to 26.

Torts - Topic 2643

Vicarious liability - Particular persons - Chief of police or police board - See paragraphs 27 to 47.

Cases Noticed:

Vandokkumberg v. Meyer (2006), 231 B.C.A.C. 67; 381 W.A.C. 67; 2006 BCCA 423, refd to. [para. 24].

Perehinec v. Northern Pipeline Agency, [1983] 2 S.C.R. 513; 50 N.R. 248; 51 A.R. 10; 4 D.L.R.(4th) 1, refd to. [para. 36].

Winterbottom v. London Police Commissioners (1901), 1 O.L.R. 549 (H.C.), refd to. [para. 38].

Aikens v. Kingston (City), [1923] 3 D.L.R. 869 (Ont. S.C.), refd to. [para. 38].

MacDonald v. Vancouver (City), [1953] 2 S.C.R. 170, refd to. [para. 38].

McCleave v. Moncton (City) (1902), 32 S.C.R. 106, refd to. [para. 38].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201; 171 D.L.R.(4th) 193, refd to. [para. 38].

R. v. Metropolitan Police Commissioner; Ex parte Blackburn, [1968] 1 All E.R. 763 (C.A.), refd to. [para. 42].

Counsel:

B. Quayle and K.F.W. Liang, for the appellant;

C.D. Veinotte, for the respondent.

This appeal was heard at Vancouver, B.C., on February 18, 2015, by Newbury, Saunders and Harris, JJ.A., of the British Columbia Court of Appeal. On August 17, 2015, Saunders, J.A., delivered the following reasons for judgment for the court.