Mooney v. British Columbia (Attorney General) et al., (2004) 202 B.C.A.C. 74 (CA)

• Judge: Donald, Hall and Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 22, 2004
• Jurisdiction: British Columbia
• Citations: (2004), 202 B.C.A.C. 74 (CA);2004 BCCA 402

Mooney v. B.C. (A.G.) (2004), 202 B.C.A.C. 74 (CA);

    331 W.A.C. 74

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. JL.042

Bonnie Mooney, Michelle Mooney, an infant by her guardian ad litem, Bonnie Mooney, and Kristy Mooney, an infant by her guardian ad litem, Bonnie Mooney (appellants/plaintiffs) v. The Attorney General of the Province of British Columbia, The Attorney General of Canada and Constable C. Andrichuk (respondents/defendants) and Vancouver Rape Relief and Women's Shelter (intervenor)

(CA028582; CA028875; 2004 BCCA 402)

Indexed As: Mooney v. British Columbia (Attorney General) et al.

British Columbia Court of Appeal

Donald, Hall and Smith, JJ.A.

July 22, 2004.

Summary:

Spouses separated after the husband as­saulted the wife, pleaded guilty to assault and was sentenced to 21 days' imprisonment plus one year's probation. When the spouses met to discuss a property issue, the husband became agitated and the wife left, being pursued by the husband. The wife, fearing her husband, filed a complaint with police. The officer dealing with the complaint de­clined to investigate the matter as there was no overt or explicit threat. Seven weeks later, the husband arrived at the wife's resi­dence, killed a friend and wounded the wife's daughter. The wife and another daughter escaped without physical injury. The husband then shot himself. The wife and daughters brought a negligence action for damages against the officer, the province and the federal Crown.

The British Columbia Supreme Court, in a judgment reported [2001] B.C.T.C. 419, dismissed the action. The court held that having made herself known to police as a person in fear of a violent spouse, the wife established a special relationship of proximi­ty creating a private duty of care. Failing to undertake the appropriate investigation breached that duty of care. However, there was no causal connection between the offi­cer's negligence and the attack that occurred seven weeks later. There was a pre-existing risk, independent of the officer's negligence, that the husband would harm the wife and others. The negligence did not materially contribute to the harm beyond the de mini­mis range. The wife and children appealed, inter alia, the finding that there was no causal link between the negligence and the harm. The defendants cross-appealed, inter alia, the finding that a private duty of care existed.

The British Columbia Court of Appeal, Donald, J.A., dissenting, dismissed the ap­peal and the cross-appeal. The trial judge did not err in finding that there was no causal connection between the officer's negligence and the harm inflicted seven weeks later.

Police - Topic 5028

Actions against police - Negligence - Failure to warn and protect - [See Torts - Topic 9154 ].

Police - Topic 5030

Actions against police - Negligence - Duty to public - [See Torts - Topic 9154 ].

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation - [See Torts - Topic 9154 ].

Torts - Topic 61

Negligence - Causation - Causal connec­tion - A wife complained to police that she subjectively feared her estranged abusive husband - The husband was a known violent offender who was on probation for a previous incident of domestic violence - The incident leading to the complaint involved no overt or explicit threat - Not­withstanding the wife's distress and police policy of a heightened degree of protection in domestic violence cases, the officer did little other than suggesting the wife go to Family Court to obtain a restraining order - Seven weeks later, the husband entered the wife's premises, shot and killed the wife's friend, wounded the wife's daugh­ter, then killed himself - The wife brought a negligence action for damages against the police officer et al. - The trial judge found a duty of care and negligence, but dis­missed the action because there was no causal connection between the police fail­ure to investigate and the attack seven weeks later - The British Columbia Court of Appeal affirmed the lack of a causal connection - The harm resulted from an act independent of the officer's negligence - Causation required more than the officer's inaction materially increasing the risk of harm, as opposed to materially contributing to the harm outside the de minimis range - There was an independent risk that the husband would harm the wife in spite of anything the police might do - See para­graphs 105 to 197.

Torts - Topic 9154

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Police officers and authorities - At issue was whether police, who owed a public duty of care, also owed a private duty of care to a wife who subjectively feared physical harm from her estranged husband, who was known as a violent person and on probation for a previous domestic violence offence - The wife filed a complaint against her husband following an incident where he chased her in his vehicle, but made no explicit or overt threat - Notwithstanding the wife's distress and police policy of a heightened degree of protection in domestic violence cases, the officer did little other than suggesting the wife go to Family Court to obtain a re­straining order - Seven weeks later, the husband entered the wife's premises, shot and killed the wife's friend, wounded the wife's daughter, then killed himself - The trial judge held that having made herself known to police as subjectively fearing a violent abuser, the wife established a spe­cial relationship of proximity creating a private duty of care - The inadequate investigation constituted negligence - The British Columbia Court of Appeal affirmed the finding of a private duty of care and negligence - See paragraphs 105 to 197.

Cases Noticed:

Home Office v. Dorset Yacht Co., [1970] A.C. 1004; [1970] 2 All E.R. 294, refd to. [para. 44].

Odhavji Estate et al. v. Woodhouse et al. (2003), 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 52].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 54].

Cottrelle et al. v. Gerrard et al. (2003), 178 O.A.C. 142 (C.A.), refd to. [para. 90].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161, refd to. [para. 91].

M.B. v. British Columbia (2003), 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161; 2003 SCC 53, refd to. [para. 99].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235; [1997] 1 W.W.R. 97; 31 C.C.L.T.(2d) 113, refd to. [paras. 122, 148].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [paras. 122, 148].

Cook v. Lewis, [1951] S.C.R. 830; [1952] 1 D.L.R. 1, refd to. [para. 124].

Summers v. Tice (1948), 199 P.2d 1, refd to. [para. 124].

Corey v. Havener and Adams (1902), 182 Mass. 250, refd to. [para. 125].

Arneil v. Patterson, [1931] A.C. 560; [1931] All E.R. Rep. 90 (H.L.), refd to. [para. 125].

Wilsher v. Essex Area Health Authority, [1988] 1 A.C. 1074; 87 N.R. 140; [1988] 2 W.L.R. 557 (H.L.), refd to. [paras. 127, 155].

McGhee v. National Coal Board, [1973] 1 W.L.R. 318; [1972] 3 All E.R. 1008 (H.L.), refd to. [paras. 127, 152].

Wintle v. Piper et al., [1994] 9 W.W.R. 390; 46 B.C.A.C. 124; 75 W.A.C. 124; 93 B.C.L.R.(2d) 387 (C.A.), refd to. [para. 129].

Fairchild Estate v. Glenhaven Funeral Services Ltd. et al., [2002] 3 All E.R. 305; 293 N.R. 1; [2002] 3 W.L.R. 89; [2002] I.C.R. 798; [2002] UKHL 22, refd to. [paras. 130, 155].

Bonnington Castings Ltd. v. Wardlaw, [1956] A.C. 613; [1956] 1 All E.R. 615 (H.L.), refd to. [paras. 130, 150].

Haag v. Marshall, [1990] 1 W.W.R. 361; 39 B.C.L.R.(2d) 205; 61 D.L.R.(4th) 371; 1 C.C.L.T.(2d) 99 (C.A.), refd to. [paras. 132, 152].

Schacht v. O'Rourke et al., [1976] 1 S.C.R. 53; 3 N.R. 453; 55 D.L.R.(3d) 96, refd to. [para. 136].

Jane Doe v. Board of Police Commis­sioners of Metropolitan Toronto et al. (1990), 40 O.A.C. 161; 74 O.R.(2d) 225; 72 D.L.R.(4th) 580; 5 C.C.L.T.(2d) 77 (Div. Ct.), refd to. [para. 136].

Jane Doe v. Board of Police Commis­sioners of Metropolitan Toronto et al. (1998), 60 O.T.C. 321; 39 O.R.(3d) 487; 160 D.L.R.(4th) 697; 126 C.C.C.(3d) 12; 43 C.C.L.T.(2d) 123 (Gen. Div.), refd to. [para. 136].

Rivtow Marine Ltd. v. Washington Iron­works, [1974] S.C.R. 1189; 40 D.L.R.(3d) 530; [1973] 6 W.W.R. 692, refd to. [para. 136].

Hill Estate v. Chief Constable of West Yorkshire, [1989] A.C. 53; 102 N.R. 241; [1988] 2 W.L.R. 1049; [1988] 2 All E.R. 238 (H.L.), refd to. [para. 137].

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

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; 206 D.L.R.(4th) 193; [2002] 1 W.W.R. 221; 2001 SCC 79, refd to. [para. 138].

Swanson and Peever v. Canada, [1992] 1 F.C. 408; 124 N.R. 218; 80 D.L.R.(4th) 741; 7 C.C.L.T.(2d) 186 (F.C.A.), refd to. [para. 138].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577; [2002] 7 W.W.R. 1; 2002 SCC 33, refd to. [paras. 140, 188].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 140].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185; 148 D.L.R.(4th) 48; [1997] 8 W.W.R. 303; 35 B.C.L.R.(3d) 187, refd to. [para. 140].

Rothwell et al. v. Raes et al. (1990), 2 O.R.(3d) 332; 76 D.L.R.(4th) 280 (C.A.), refd to. [para. 140].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 209 D.L.R.(4th) 513; 2002 SCC 15, refd to. [para. 140].

Browning v. War Office, [1962] 3 All E.R. 1089 (C.A.), refd to. [para. 157].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42, refd to. [para. 176].

Qualcast (Wolverhampton) Ltd. v. Haynes, [1956] A.C. 743 (H.L.), refd to. [para. 177].

Walker Estate et al. v. York Finch General Hospital et al., [2001] 1 S.C.R. 647; 268 N.R. 68; 145 O.A.C. 302, refd to. [para. 180].

Derksen et al. v. 539938 Ontario Ltd. et al., [2001] 3 S.C.R. 398; 277 N.R. 82; 153 O.A.C. 310, refd to. [para. 184].

Authors and Works Noticed:

Black, V., A Farewell to Cause: Canadian Red Cross Society v. Walker Estate (2001), 24 Advocate's Q. 478, generally [para. 183, footnote 1].

Black, V., Demeyere, G., and Klimchuk, D., Annotation to Green v. Surchin (1999), 44 C.C.L.T.(2d) 68, generally [para. 183, footnote 1].

Demeyere, G., The "Material Contribution" Test: An Immaterial Contribution to Tort Law: A Comment on Briglio v. Faulkner (2000), 34 U.B.C. Law Rev. 317, gener­ally [para. 183, footnote 1].

Klar, Lewis N., Tort Law (3rd Ed. 2003), p. 398 [para. 156].

Stapleton, J., Cause-in-Fact and the Scope of Liability for Consequences (2003), 119 Law Q. Rev. 388, p. 404 [para. 183, footnote 1].

Counsel:

H.C. Wood, for the appellants;

G. Carruthers and E. Burnet, for the re­spondents;

G. Dickson, Q.C., for the intervenor.

This appeal and cross-appeal were heard on November 20-21, 2003, at Vancouver, B.C., before Donald, Hall and Smith, JJ.A., of the British Columbia Court of Appeal.

On July 22, 2004, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Donald, J.A., dissenting - see paragraphs 1 to 104;

Hall, J.A. - see paragraphs 105 to 145;

Smith, J.A. - see paragraphs 146 to 197.