Graham Ranching Company Limited v Alberta Society for the Prevention of Cruelty to Animals, 2012 ABQB 707

Court of Queen ’ s Bench of Alberta Citation: Graham Ranching Company Limited v Alberta Society for the Prevention of Cruelty to Animals, 2012 ABQB 707 Date: 20121119 Docket: 1101 08155 Registry: Calgary Between: Graham Ranching Company Limited Plaintiff/Respondent - and - The Alberta Society for the Prevention of Cruelty to Animals and Richard B. Wheatley Defendants/Appellants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice R.E. Nation _______________________________________________________ Appeal from the Oral Decision of K.R.

Laycock, Master in Chambers on the 16 th day of April, 2012 I. Introduction [ 1 ] This is an appeal from a Master's decision, which dismissed the Appellants' application requesting

summary dismissal of all

claims by the Respondent against the Appellant, Richard B. Wheatley. [ 2 ] The issue in this appeal is the

interpretation of

section 10 of the Peace Officer Act , RSA 2006, c P-35 (" POA "). Specifically, does

section 10 of the POA provide peace officers with statutory immunity from personal liability by attributing any personal liability to their employer; or is

section 10 a statement of an employer's vicarious liability, which does not exclude a finding of personal liability against a peace officer. II.

Summary of Decision [ 3 ] For the reasons that follow, I dismiss the appeal. III. Background Facts [ 4 ] The facts set out in the paragraphs below, are the basis of the application, and are not in dispute. [ 5 ] Between April 18 and 22, 2011, the Alberta Society for the Prevention of Cruelty to Animals ("ASPCA"), Richard B. Wheatley ("Wheatley"), and others, seized livestock ("Seizure") at the Graham Ranch, pursuant to a warrant granted on April 15, 2011.

The warrant authorized the Seizure to secure evidence of alleged offences committed under the Criminal Code , RSC 1985, c C-46 and the Animal Protection Act , RSA 2000, c A-41. [ 6 ] The Plaintiff/Respondent, Graham Ranching Company Limited, filed a Statement of Claim naming the Defendants/Appellants, Wheatley and the ASPCA. At all material times, Wheatley was a peace officer, as designated by the POA , employed by the ASPCA. [ 7 ] The Respondent's Statement of Claim alleged damages resulting from Wheatley's conduct.

Specifically, the Respondent claimed that Wheatley acted in bad faith during the execution of his duties, that he trespassed on the Respondent's lands, that he was negligent in the course of the Seizure, that he committed the tort of conversion in the course of the Seizure, that he was negligent in his investigation, and that he committed the tort of malicious prosecution. [ 8 ] In the Appellants' Statement of Defence, the ASPCA denied the Respondent's allegations against Wheatley, admitted that Wheatley was its employee, admitted that it authorized his acts, and adopted his actions. IV.

Master's Decision [ 9 ] The Master delivered his oral reasons on April 16, 2012. His reasons include the following: I'm satisfied that the application for

summary judgement ought to be dismissed. In order to succeed, the applicant must satisf[y] me that

section 10 of the Peace Officer Act is intended to and does exclude the peace officer from any liability for his actions, which were conducted during the scope of his employment.

Section 10 doesn't say that. The plain and simple reading of the

section would not lead me to that conclusion. Statutory

interpretation of rules require that the

section be read in ... the plain and ordinary meaning of the terms used. And one would have to impute a substantial amount of text into

section 10 to reach the conclusion that counsel would like me to draw, that being that there's no liability for the peace officer for his actions. That, in my view, could only be obtained by language similar to the language of the British Columbia Police Act , Section 21(2), that was considered by the Supreme Court of Canada in the McVe[a] decision.

It seems to me that the

section 10 is in the legislation to make the authorized employer liable where the authorized employer might nototherwise be liable for the actions of a peace officer. And I say that because of the Independent Discretion Rule that's dealt with byProfessor Hogg in Liability of the Crown (4th), pages 173 to 175. The learned author indicates in his text that the Independent DiscretionRule is an exception to the vicarious liability of not only the Crown, but other public authorities. V. Issue [10] The issue on appeal is whether the Master erred in his

interpretation of

section 10 of the POA. VI.

Standard of Review [11] The standard of review on appeal from a Master to a Judge, on all issues, is correctness: Bahcheli v Yorkton Securities, 2012ABCA 166 at para 30. [12] The Supreme Court of Canada stated in Dunsmuir v New Brunswick, 2008 SCC 9 , 208 SCC 9, [2008] 1 SCR 190 at192: When applying the correctness standard in respect of jurisdictional and some other questions of law, a reviewing court will not showdeference to the decision maker's reasoning process; it will rather undertake its own analysis of the question and decide whether it agreeswith the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer.

VII. Statutory Provisions [13]

Section 10 of the POA states as follows: 10. Authorized employer liable The authorized employer of a peace officer is liable for the actions and omissions of the peace officer while the peace officer is actingwithin the scope of the peace officer's authority, responsibility and duties. VIII. Arguments 1. Application of the Independent Discretion Rule [14] The Appellants submit that the independent discretion rule is no longer valid law in Alberta, and that the Master erred inapplying it in his

interpretation of

section 10 of the POA. [15] Neither the Appellants nor the Respondent referenced the "independent discretion rule" in their pleadings or oral arguments.Rather, the Master introduced the doctrine during oral arguments: ...let me draw to your attention a book [Peter Hogg, Patrick Monahan & Wade Wright, Liability of the Crown, 4th ed (Toronto: ThomsonReuters Canada, 2011)] that I found. Madam Clerk, would you give those to counsel.

Master ... was kind enough to tell me about something called the Independent Discretion Rule, which basically states that peace officers and police officer's actions do not make the Crown or any agency personally liable under the master/servant relationship. [ 16 ] The Master only gave the parties an opportunity to respond orally on the spot. [ 17 ] As noted in para 9, the Master also referred to the independent discretion rule while delivering his judgement. [ 18 ] While it is unfortunate that the Master raised the independent discretion rule on his own accord, without giving either party the opportunity to review it in advance, this appeal is neither the time nor place to deal with the independent discretion rule.

This appeal can be, and is, decided without considering it. 2. Appellants' Argument on

Section 10 of the POA [ 19 ] The Appellants submitted that

section 10 of the POA completely transfers any liability of a peace officer (Wheatley in this case) for any acts and omissions committed within the scope of his authority, responsibility, and duties, to his authorized employer (the ASPCA in this case). The Appellants submitted several arguments in support of this submission. [ 20 ] First, the Appellants submitted that their

interpretation of

section 10 of the POA is logical. [ 21 ] Second, the Appellants submitted that differences in language between the POA and Alberta's Police Act , RSA 2000, c P-17, two statutes governing similar professions, services, actions, and anticipated liabilities, demonstrate a different legislative purpose, intent, and effect. The Appellants submitted that

section 39 of Alberta's Police Act clearly codifies vicarious liability: 39

(1) For the purposes of this section, "employee" means any civilian employee or any peace officer appointed under the Peace Officer Act employed for a police service established under

section 24 or 27.

(2) The chief of police is liable in respect of a tort committed by a police officer or other employee as a master is liable for a tort committed by the master's servant in the course of the servant's employment, if (

a) the police officer or employee was under the direction and control of the chief at the time that the tort was committed, and (

b) the tort was committed in the performance or purported performance of the duties of the police officer or employee.

(3) The chief of police shall be treated for all purposes as a joint tort-feasor in respect of a tort referred to in subsection (2). ... [ 22 ] The Appellants submitted that because the Legislature chose not to use similar language in

section 10 of the POA , the only conclusion that can be drawn is that

section 10 of the POA is not a codification of vicarious liability. Rather, the Legislature must have intended

section 10 of the POA to completely transfer all findings of liability against a peace officer to the authorized employer. [ 23 ] Third, the Appellants submitted that similarities in language between

section 10 of the POA and

section 11 and 21 of British Columbia's Police Act , RSBC 1996, c 367 demonstrate a similar legislative purpose, intent, and effect.

Section 11 and 21 of British Columbia's Police Act state:

Ministerial liability 11

(1) The minister, on behalf of the government, is jointly and severally liable for torts committed by (

a) provincial constables...if the tort is committed in the performance of their duties, ... Personal liability 21

(1) In this section, "police officer" means either of the following: (

a) a person holding an appointment as a constable under this Act ...

(2) No action for damages lies against a police officer or any other person appointed under this Act for anything said or done or omittedto be said or done by him or her in the performance or intended performance of his or her duty or in the exercise of his or her power or forany alleged neglect or default in the performance or intended performance of his or her duty or exercise of his or her power. ... [24] In British Columbia (Attorney General) v Insurance Corporation of British Columbia, 2008 SCC 3, [2008] 1 SCR 21(referred to as "McVea" by the Master) at para 11, the Supreme Court considered these provisions, and held that

section 21 exemptspolice officers from liability, while

section 11 transfers the liability arising from a police officer's tort to the Attorney General of BritishColumbia. 3. Respondent's Argument on

Section 10 of the POA [25] The Respondent submitted that

section 10 of the POA provides a statutory confirmation of the vicarious liability whichattaches to the conduct of peace officers while acting within the scope of their authority, responsibility, and duties. The Respondentrelied on the following cases to point out that police officers can have a duty of care and liability in tort: Odhavji Estate v Woodhouse,2003 SCC 69, [2003] 3 SCR 263; Hill v Hamilton-Wentworth Regional Police Services Boards, 2007 SCC 41, [2007] 3 SCR 129; Greenv Diack, 2012 ABQB 45. [26] The Respondent submitted that

section 10 of the POA does not provide statutory immunity for peace officers from tortiousconduct. The Respondent submitted that the courts have consistently recognized that individual peace officers can be liable for tortiousconduct. IX. Analysis [27] Both parties agree that

section 10 of the POA applies. The issue is in the

interpretation of that section. [28]

Section 10 of the POA has not yet been judicially considered. [29] The Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at 41 held thatthe preferred approach to statutory

interpretation is as follows:

...the words of

an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of theAct, the object of the Act, and the intention of Parliament. [30] The text is an important element of legislative communication, and must be taken into consideration: Pierre-André Côté, TheInterpretation of Legislation in Canada, 4th ed (Toronto: Thompson Reuters Canada Ltd., 2011) at 273.

The ordinary or commonmeaning is "...the natural meaning that appears when the provision is simply read through as a whole...[and] the meaning whichcommends itself when the structure and nature of the provision are examined": Canadian Pacific Air Lines Ltd. v Canadian Air LinePilots Assn., (SCC), [1993] 3 SCR 724 at 735.

The prima facie assumption is that the statue has been properly drafted:Ontario (Ministry of Health and Long-Term Care) v Georgiou (2002), (ON CA), 61 OR (3d) 285 at para 16(ONCA). [31] In cases where the employee's conduct is at issue, generally both the employee and the employer are named as parties in alawsuit, the employee's conduct is examined, and the question becomes whether or not there is vicarious liability. 1.

Can a Peace Officer be Named? [32] The Appellants conceded in their brief to the Master, and to this Court during oral submissions, that they are not arguing thatsection 10 of the POA means that a peace officer cannot be named in a lawsuit. [33] The POA does not contain a statutory prohibition from naming an employee peace officer. This is in contrast to section 21(2)of British Columbia's Police Act, which clearly states: "No action for damages lies against a police officer...". [34] Under

section 10 of the POA, a peace officer can be named in a lawsuit, and his conduct can be examined. 2. Can a Peace Officer be found Personally Liable? [35] The real issue is whether

section 10 means that the authorized employer is responsible to pay for a finding of liability againsta peace officer, or whether it means that liability transfers to the authorized employer such that the peace officer is completelyimmunized against a finding of personal liability. [36] The plain meaning of

section 10 of the POA says that the authorized employer is liable. The plain meaning of the POA doesnot say that a peace officer is not liable. In my view, if the Legislature intended to exclude a finding of liability against peace officers, itwould have stated it explicitly. The POA does not include provisions equivalent to s. 21(2) of the British Columbia Police Act that wasunder consideration by the Supreme Court of Canada in the McVea case. [37] I am also concerned that the Appellants' suggested

interpretation of

section 10 of the POA would create less protection forpeace officers employed by the police relative to peace officers employed by an authorized employer other than the police. Under section39 of Alberta's Police Act, peace officers employed by the police can be named in a lawsuit and found personally liable for a tort. TheChief of Police is then vicarious liable. If I accept the Appellants'

interpretation of

section 10 of the POA, then peace officers employedby an authorized employer other than the police service could be named in a lawsuit, but could not be found personally liable. Instead,the peace officer's personal liability would fully transfer to the authorized employer. If the Legislature intended to create differentsituations of personal liability for peace officers employed by the police service, compared to peace officers employed by an authorizedemployer, it should have been explicit in doing so. [38] I conclude that, pursuant to

section 10 of the POA, a peace officer can be named and found personally liable for any acts andomissions while acting within the scope of his authority, responsibility, and duties. The authorized employer is then liable for findings ofpersonal liability against the peace officer.

[ 39 ] The Master in this case came to the same

interpretation of

section 10 of the POA . Therefore, the Master did not err. X. Conclusion [ 40 ] This appeal is dismissed. Heard on the 4 th day of October, 2012. Dated at the City of Calgary, Alberta this 19 th day of November, 2012. R.E. Nation J.C.Q.B.A. Appearances: Colin D. Roberts, First West Law LLP for the Plaintiff/Respondent Steve T. Eichler and Laura J. MacFarlane, Field LLP for the Defendants/Appellants