Harper v Canada (AG), 2021 ABQB 233

Court of Queen’s Bench of Alberta Citation: Harper v Canada (AG), 2021 ABQB 233 Date: 20210326 Docket: 1503 19147 Registry: Edmonton Between: Robert Mitchum Harper Plaintiff - and - Travis Armstrong, Sheldon Robb, Dwayne Greenlaw, Martin Girard, Christopher Nelson and Attorney General of Canada Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] This is an appeal from the decision of Master Schulz of November 2, 2019, who dismissed all of paragraph 4B contained in the Plaintiff/Appellant Harper’s (“Harper”) Amended Statement of Claim. This dismissal of paragraph 4B was as a result of a

summary dismissal application of this paragraph filed by the Defendant/Respondent Attorney General of Canada (“Canada”). Standard of Review [ 2 ] Both parties agree that the applicable standard of review in this appeal is “correctness”, and this appeal is akin to a de novo hearing: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 , at paras 3 , 17 and 30. [ 3 ] Rule 6.14(3) of the Rules of Court reads as follows:

An appeal from a master’s judgment or order is an appeal on the record of proceedings before the master and may also be based on additional evidence that is, in the opinion of the judge hearing the appeal, relevant and material. [ 4 ] Rule 6.14(3) provides that an appeal from a Master in addition to being an appeal on the Record, may also be based on new evidence that is relevant and material. New evidence presented on an appeal requires a fresh assessment of the facts: Gudzinski Estate v Allianz Global Risks US Insurance Company Limited , 2012 ABCA 5 at pars 21 and 24. Test for

Summary Judgment/Summary Dismissal [ 5 ] Rule 7.3(1)(

b) of the Alberta Rules of Court deals with

summary dismissal as follows: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following: (

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount; (

b) if the only real issue to be tried is the amount of the award, determine the amount or refer the amount for determination by a referee; (

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstances require. [ 6 ] With respect to

summary judgment application of Canada regarding Harper’s claims contained in paragraph 4B of the amended statement of Claim against the RCMP, our Court of Appeal summarized the applicable principles with respect to

summary dispositions as follows in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 at paras 47-49 : [47] The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. To repeat, the analysis does not have to proceed sequentially, or in any particular order. The presiding judge may determine, during any stage of the analysis, that

summary adjudication is inappropriate or potentially unfair because the record is unsuitable, the issues are not amenable to

summary disposition, a

summary disposition may not lead to a “just result”, or there is a genuine issue requiring a trial. [48] There is no policy reason to cling to the old, strict rules for

summary judgment. This can only serve to undermine the shift in culture called for by Hryniak v Mauldin .

Summary judgment should be used when it is the proportionate, more expeditious and less expensive procedure. It frequently will be. Its usefulness should not be undermined by attaching conclusory and exaggerated criteria like “obvious” or “high likelihood” to it. [49] In closing, it is helpful to note that the judge who dismisses an application for

summary adjudication may still be in a position to advance the litigation. The judge may be able to isolate and identify issues that can be tried separately under R. 7.1. The

summary judgment materials may form a suitable platform for a

summary trial, as happened in Vallard Construction Ltd. v Bird Construction , 2015 ABQB 141 , 41 CLR (4th) 51 . While serial applications for

summary judgment are not to be encouraged, a second application for

summary judgment may be appropriate later in the proceedings when the record is clarified and the issues are perhaps narrowed: Milne v Barnes , 2013 ABCA 379 at para. 6 , 561 AR 256 . Facts

[ 7 ] Harper’s claim arises from a warrantless arrest that occurred on December 17, 2013 as a result of a complaint from a woman. The woman said that she was a prostitute and had been picked up in Edmonton and transported to Harper’s residence in Gibbons, Alberta, where she was allegedly assaulted. The five RCMP members named in Harper’s claim as Defendants allegedly breached Harper’s Charter rights when they arrested him, and when they took him to the Morinville RCMP detachment.

At the time of Harper’s arrest, he was also subject to an Undertaking from a different incident, which prohibited him from consuming alcohol. As it was alleged that Harper consumed alcohol on December 17, 2013, he was charged with breaching this Undertaking as well. [ 8 ] A warrant remanding the Plaintiff in custody was issued by the Court on December 18, 2013. On January 2, 2014, Harper appeared in front of a Justice of the Peace, who granted him release on a $5,000.00 cash bail.

Duty counsel appearing for Harper before the Justice of the Peace consented to the Crown’s position that Harper be released on $5,000.00 cash bail, such that essentially a joint submission had been presented to the Justice of the Peace. As it turned out, Harper was unable to come up with the $5,000.00 cash bail and was remanded in custody to the ERC, where he alleges that he suffered a number of injuries. He was eventually released on February 28, 2014 after having his cash bail reduced to $2,500.00. [ 9 ] On November 27, 2017, a trial found him only guilty of simple assault contrary to

section 266 of the Criminal Code . Analysis [ 10 ] The original statement of claim including paragraph 4B which the Master struck, alleged that Harper was wrongfully arrested and assaulted and that the Defendant Canada whose RCMP officers had arrested Harper, were responsible for his alleged mistreatment at the Edmonton Remand Centre. [ 11 ] Canada’s

summary dismissal application was based on three grounds: A. The Federal Crown cannot be responsible for the actions of the employees of the Provincial Government of Alberta; B. The detention at the Edmonton Remand Centre (“ERC”) was as a result of an intervening judicial act by a Justice of the Peace and Canada cannot be held responsible for what happens at the ERC afterwards; C.

No duty of care is owed by Canada to the Plaintiff with respect to his alleged treatment at the ERC. [ 12 ] Harper admitted in the Notice to Admit Facts served upon him by Canada that none of the named RCMP officers in the Statement of Claim had anything to do with the operation of the ERC, that none of them “mistreated” Harper as complained of in the Amended Statement of Claim, and that none of the individual defendants who interacted with Harper in the ERC were servants or employees of the Federal Government. [ 13 ] Amongst Harper’s alleged mistreatment in the ERC were that he was not provided with proper medical treatment, that he did not have his dietary or medication needs met, and as a result of an improper reapplication of his cast, he suffered an infection and scarring.

This is my very brief

summary of what are in fact 21 specific allegations made by Harper in the amended statement of claim, which 21 allegations cover three pages single spaced. However, it is clear that these events alleged occurred at the ERC and not in the RCMP detachment cells, so that non-federal employees, of the government of Alberta, are the individuals involved. [ 14 ] Harper’s position before me on this appeal is that the Master erred in dismissing one portion of paragraph 4(

b) of the Amended Statement of Claim. Harper submits that the following passage should not have been be summarily dismissed: As a result of the prosecution initiated by the RCMP by the information sworn on December 18, 2013, the Plaintiff was incarcerated. It was reasonably foreseeable by the RCMP that the result of initiating the prosecution against the Plaintiff would result in his incarceration. [ 15 ] Harper did not file any additional materials in the appeal before me, and relies on his written argument that was filed with the Master.

Harper’s counsel submits that his present submissions before me are the same as what was argued before the Master, while Canada believes that Harper’s position has been continually changing. As the resisting party to Canada’s

Summary Dismissal application, Harper was required to put his best foot forward, so it appears to me that he has not done so in these proceedings. Nevertheless, Canada does not strenuously object to dealing with Harper’s revised arguments, at this time. [ 16 ] At the oral appeal before me on November 13, 2020, the Harper submitted that the appeal was about the Master summarily dismissing all of paragraph 4(

b) of the Amended Statement of Claim and not severing the parts that should not have been dismissed. Harper’s counsel made clear that the he was not appealing the Master’s decision to dismiss the rest of paragraph 4(b), so the focus was on the part of paragraph 4(

b) that Harper says should not have been dismissed. Harper emphasized that the appeal was not as described by Canada in its brief which focused on the entirety of paragraph 4(b).

Instead, Harper’s claim that would remain is for imprisonment simpliciter as being a foreseeable consequence of the RCMP’s conduct, or in other words, his loss of freedom. [ 17 ] At the appeal hearing, Harper submitted that the words “at the Edmonton Remand Centre” should also be struck out despite his written brief, since the place of imprisonment is not relevant, so the part of paragraph 4b that should survive is as follows: As a result of the prosecution initiated by the RCMP by the Information sworn on December 18, 2013, the Plaintiff was incarcerated and It was reasonably foreseeable by the RCMP that the result of initiating the prosecution against the Plaintiff would be his incarceration. [ 18 ] Finally, Harper argues that whether or not he could have sued his jailers (Alberta) and the jail healthcare providers (AHS) is irrelevant.

In any event, Harper’s counsel points out that the reason is that no lawsuit was commenced against Alberta or AHS was that

the Amended Statement of Claim was filed on January 13, 2018, well after the two-year limitation period expired to sue Alberta and AHS, which is calculated from Harper’s release date of May 8, 2014. The Defendant RCMP’s Duty of Care, and the Requirement for Reasonable Foreseeability [ 19 ] To determine whether a duty of care is owed in tort law, the Court must decide whether there is sufficient foreseeability, and sufficiently close and direct proximity in the relationship between a plaintiff and a defendant.

Harper argues that Canada through the actions of the RCMP officers in question can be liable for the consequences of a negligent investigation since they lacked reasonable grounds to lay the charges in the first place, and therefore Canada can be held liable for damages for the Plaintiff’s “loss of liberty” as a result of that negligent investigation. [ 20 ] The Plaintiff bears the burden of establishing this duty of care and in this case, Harper provided no authority where duty of care has been found to exist between arresting police officers and prisoners remanded to a provincial remand centre by a judicial authority. [ 21 ] Even if the relationship between the parties here as submitted by Harper is novel because it does not fall within an existing category or relationship where a duty of care has been recognized, a two-step analysis must still be undertaken with respect to a novel claim, as the Supreme Court of Canada discussed in Childs v Desormeaux , 2006 SCC 18 . [ 22 ] Rennalls v Tettey , [2021] A.J.

No. 6 ; 2021 ABQB 1 at paras 20 to 22 recently discussed this two-step analysis used in determining whether a claim is novel or bound to fail in the context of tort actions brought against the police for negligent investigation: 20 Many novel claims in tort have been brought against the police over the years.

The correct approach to evaluating these claims was described by McLachlin CJC in Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board , 2007 SCC 41 at paragraph 27 [ Hill ]: If a new relationship is alleged to attract liability of the police in negligence in a future case, it will be necessary to engage in a fresh Anns analysis, sensitive to the different considerations which might obtain when police interact with persons other than suspects that they are investigating.

Such an approach will also ensure that the law of tort is developed in a manner that is sensitive to the benefits of recognizing liability in novel situations where appropriate, but at the same time, sufficiently incremental and gradual to maintain a reasonable degree of certainty in the law. 21 The starting point to determine whether one individual owes another a private law duty of care such that they can be sued for negligent conduct is the Cooper-Anns test, derived from the well-known cases of Anns v Merton London Borough Council , 1977 UKHL 4 , and Cooper v Hobart , 2001 SCC 79 ; Williams v.

Canada (AG) (2009), 2009 ONCA 378 , leave ref'd [2009] SCCA No 298, at para 13.

The Supreme Court of Canada applied the Cooper-Anns test in the context of suits against the police in Odhavji Estate v Woodhouse , 2003 SCC 69 [" Odhavji "], laying out the correct approach at para 46: First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter -- in which case a prima facie duty of care arises.

Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. 22 The plaintiff has the ultimate legal burden of establishing the duty of care, but once a prima facie duty has been established, the evidentiary burden of considering the policy considerations shifts to the defendant: Childs v Desormeaux , 2006 SCC 18 at para 13 .

Conclusion [ 23 ] In the first stage of the analysis it must be determined if a prima facie duty of care even exists. This step involves determining if the relationship is one of sufficient proximity between the parties, where the failure of the defendant to take care might foreseeably cause loss or harm to the plaintiff. Once an accused is transferred to a remand centre as a result of an intervening series of judicial acts as occurred here, police relinquish all control over the prisoner.

As such, there is no prima facie duty of care. [ 24 ] With respect to reasonable foreseeability, Harper has also not offered any facts that establish that the alleged damages he suffered as a result of the conduct of individual third parties in the ERC was reasonably foreseeable by the five RCMP officer Defendants.

The alleged injuries suffered by Harper at the ERC as a result of inadequate medical attention from Alberta government staff, violence from other inmates, as well as Harper’s own actions with respect to the RCMP defendants cannot be reasonably foreseeable risks. [ 25 ] Once a judicial act occurs, an arresting party cannot be held liable as the direct cause for a person’s imprisonment. Such a judicial act is deemed to be the direct cause of the person’s imprisonment, and the party who set the arrest in motion cannot be held liable.

Therefore, once a judicial act occurred, the RCMP were no longer liable for any injuries sustained by the Plaintiff after this point. [ 26 ] In S(VA) v Grace , 2014 ABQB 150 , the plaintiff was arrested and held in custody for 9 days, prior to being released on bail from remand. The arrest was found to be unlawful and the criminal charges against the plaintiff were eventually withdrawn. While imprisoned in remand, the plaintiff was subjected to mistreatment.

The plaintiff brought an action for false arrest, false imprisonment, and malicious prosecution against members of the Edmonton Police Service (“EPS”) and the Government of Alberta. Harper points out that there was no action against the police for negligent investigation and, but I conclude that that is irrelevant as the case stands for the

effect of the intervening judicial act. [ 27 ] In Grace , the EPS was responsible for making representations on behalf of the Crown for the plaintiff’s bail hearing. As long as the EPS did not mislead the court during the plaintiff’s bail hearing, they could not be held liable for her subsequent time in custody.

Given that there was no indication that EPS had misrepresented the facts known to them to the court, any potential liability on the part of EPS ended when the decision to remand the plaintiff was made. [ 28 ] Similarly, in this case, at least three judicial acts occurred between the arrest of the Plaintiff and the time when he suffered injuries in the Remand Centre. First, after an information was sworn and presented to a Justice of the Peace, a judicial act occurred when the Justice of the Peace made the decision to issue process for these charges.

Second, when the Justice of the Peace made the decision that the Plaintiff should be released on $5,000 cash bail, another judicial act occurred. A further bail hearing was held on February 28, 2014. These judicial acts terminated any ongoing liability of the Defendants of any liability related to the arrest or imprisonment of the Plaintiff. [ 29 ] Harper’s appeal from the decision of the Master is accordingly dismissed, and the entirety of paragraph 4B in Harper’s Amended Statement of Claim is struck by way of

summary dismissal in accordance with Canada’s application because: A. The Federal Crown cannot be responsible for the actions of the employees of the Provincial Government of Alberta; B. The detention at the Edmonton Remand Centre (“ERC”) was as a result of an intervening judicial act by a Justice of the Peace and Canada cannot be held responsible for what happens at the ERC afterwards; C. No duty of care is owed by Canada to the Plaintiff with respect to his alleged treatment at the ERC. Heard on the 13 th day of November 2020. Dated at the City of Edmonton, Alberta this 26 th day of March, 2021.

Donald Lee J.C.Q.B.A. Appearances: Tom Engel for the Plaintiff Barry Benkendorf for the Defendant, Department of Justice Canada