Gilmour v. HMQBC, 2019 BCPC 51

Citation: Gilmour v. HMQBC 2019 BCPC 51 Date: 20190125 File No: 18-0281 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: LAWRENCE DAVID GILMOUR CLAIMANT AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA DEFENDANT ORAL RULING ON APPLICATION OF THE HONOURABLE JUDGE L. MROZINSKI Appearing on his own behalf: L. Gilmour Counsel for the Defendant: N. Healey, Articled Student Place of Hearing: Victoria , B.C.

Date of Hearing: January 25, 2019 Date of Judgment: January 25, 2019 [ 1 ] THE COURT: This is an application to strike the claim brought by Lawrence David Gilmour for damages. The application is brought by Her Majesty the Queen in Right of the Province of British Columbia, herein referred to as "the Province", or from time to time, "the Queen". In any event, the application is to strike the claim on the grounds that it discloses no cause of action. It is brought pursuant to s. 7(13)(

i) of the Small Claims Rules , the submission being that it must be plain and obvious, assuming all of the facts pled to be true, that the action has no reasonable chance of success.

[2] The claimant in this case, Mr. Lawrence David Gilmour, explained today in court that he is retired, but nonetheless works part-time or is employed part-time in the security business. As such, to the extent that he does work in the security business, Mr. Gilmour isrequired to hold a B.C. security licence. Such licences are issued by the Office of the Solicitor General, pursuant to the Security ServicesAct, and that is SBO 2007,

Chapter 30. [3] Persons needing a security licence must apply to the Solicitor General by submitting an application for the licence in theprescribed form.

Section 5 of the Security Services Act empowers the registrar to issue such licences. Conditions may be imposed asconsidered appropriate by the registrar. Neither the Act nor its regulations prescribes any timelines for how long it might take to processa licencing application. [4] Nonetheless, in this case, Mr. Gilmour applied for his licence online on April the 30th of 2018. He maintains, and this is not indispute, that the website on which he applied indicated that, "Applications will be processed in seven days." Despite what Mr. Gilmourunderstood to be the case, the licence was not processed within seven days.

Rather, he did not receive his licence until June 5th of 2018. In the interim, Mr. Gilmour's existing security licence expired on May 28th of 2018. He alleges in this hearing that he, as a result, missedsix days of work. He calculates that he lost $782 in pay and he seeks compensation in that regard from the Province of British Columbia. [5] The defendant herein, Her Majesty the Queen, as I have indicated, represented by the Solicitor General for British Columbia,takes issue with the whole of the claim. In her defence, Her Majesty says, among other things, that Mr.

Gilmour has failed to mitigatehis losses, and also that Her Majesty puts Mr. Gilmour to the strict proof of the claim of loss of income, but these are factual issues. Themain thrust of the defence in this case, on behalf of the Province, is that the claim, as I say, discloses no reasonable cause of action, not acause of action in contract, not a cause of action in tort. [6] Stepping back just briefly, it is the case, as I have indicated, that the Security Services Act and regulations do provide for alicencing scheme. That is, in effect, the exercise of a statutory power.

The website did advise that the applications for licences would beprocessed within seven days and the question is whether these facts are sufficient to disclose some cause of action such that the mattershould proceed to trial. [7] Two things are immediately clear. First of all, there is no contractual obligation arising in this case. Mr. Gilmour submitted,for example, that he understood, or he took the website licencing regime to be an offer, which offer he accepted, and for which he paidconsideration.

Even leaving aside that that cannot be the case, the fact is that this is a statute driven process, it is a licencing process,and cannot give rise to any agreement between the parties. The authority for that is Lukaj v. Canada (Citizenship and Immigration),2013 FC 8, paragraphs 16 to 17. In addition, it has long been known in law that any failure to comply with a statutory duty does not, inand of itself, give rise to a cause of action. [8] That leaves the issue of negligence. The Crown submits, in its written submission, that there is no cause of action in negligencein this case.

It notes that to prove negligence, the claimant must prove, (

a) a duty of care, (

b) a breach of that duty of care, and (

c) thatdamages were caused as a result of the breach. The Crown submits in this case that the claim does not disclose the first two elements ofthe tort of negligence. [9] I propose to deal with the question of the duty of care. To be negligent, Mr. Gilmour must show that the Crown owes him aduty of care in this instance, that it has a duty to take care to ensure that his licence is processed and without delay. On the face of it, nosuch duty could be owed. I do not disagree with that. Licences are granted in this province on a daily basis in regard to any number ofactivities.

They are granted pursuant to statutory powers and the exercise of those statutory powers are reviewable. [10] Here, as with other licencing regimes, a number of considerations can be taken into account in granting licences. Publicsecurity concerns are primary with respect to these particular licences and, of course, the courts and the parties have to be alive to the factthat many people are applying for these licences.

To impose a duty to take care so as not to cause economic loss to an applicant in thesecircumstances would be inconsistent with the primary legislative objective, which is to ensure the safety of the public. [11] The Crown, in this regard, relies on the lengthy decision of Khalil v. Canada, 2007 FC 923. That case involved an applicationfor refugee status, which itself involved delay. Applications for refugee status clearly invoke significant public safety concerns. Nonetheless, the claimant, in that particular instance, alleged that the delay caused her significant depression.

The court found in thatcase that fundamentally no duty of care exists in law, that the duty, if found, would conflict with the overarching statutory or public dutyto ensure the safety of Canadians. It found, further, that to impose a duty to process without any unreasonable delay, such applicationssuch as for refugee status would be inconsistent with the statutory obligations. On public policy grounds, the court found in that casethat there was no duty of care. [12] I find, for the purposes of this application, that must also be the case here as well.

On the face of it, there is certainly noobligation to proceed in any particular time frame with respect to the issuing of licences. It would be inconsistent, in my view, with theobligations to process those licences to ensure the safety and the security of the public to impose an arbitrary timeline. Nonetheless, itdoes leave the question of whether or not the claim can also support the alternative argument of negligent misrepresentation.

In thatregard, the fact that the duty of care may not exist as it has been outlined in the cases I have just referred to, in my view, slightly missesthe mark. [13] In this instance, Mr. Gilmour does allege a representation, the representation being that the licences would be processed withinseven days. In this regard, the Crown submits, as well, that even accepting the truth of that allegation, the claim nonetheless still doesnot disclose a cause of action.

It does rely, in that regard, on the decision of Imperial Tobacco, 2011 SCC 42 , [2011] 3 S.C.R.45 and, to a lesser extent, the decision of the Court of Appeal most recently in Wu v. Vancouver (City), 2019 BCCA 23.

Of the cases, Ifind that Imperial Tobacco is most directly on point in that it deals with Crown liability, or the existence of Crown liability, for negligentmisrepresentations. [14] The issue in Imperial Tobacco is whether or not a representation by Health Canada to the effect that low tar cigarettes and lightcigarettes were less harmful to the health of Canadians than other cigarettes is a representation that can attract liability. In that particularcase, the tobacco companies had third partied the Government of Canada alleging that if they were liable for the healthcare costs with

respect to tobacco then certainly the Government of Canada was also jointly liable as a result of having itself represented the benefits ofthe use of tobacco, albeit it low tar and light cigarettes. [15] From the Imperial Tobacco case, it is quite clear, firstly, that governments cannot be held liable for policy decisions. That hasbeen a finding of the courts historically in British Columbia, certainly since the Just [Just v. British Columbia, (SCC),[1989] 2 SCR 1228] decision on through to today. Secondly, it is clear from Imperial Tobacco that the Crown can, nonetheless, be heldliable for operational decisions.

Thirdly, it is also clear that the distinction between the two is a difficult distinction and one that hasoccupied, as the court described it, much ink.

It has been something that courts have considered in numerous cases, too numerous to cite. [16] The decision of the court in Imperial Tobacco as to whether or not the claim ought to be struck on the grounds that there was noreasonable possibility of it succeeding at trial turned on the question whether or not the representation by Health Canada that low tarcigarettes were less harmful to the health of Canadians than other cigarettes was, in fact, an expression of core government policy or was,alternatively, an operational decision.

The court spends a great deal of time going through the various analysis to determine whatconstitutes the difference between an operational decision and a policy decision and concludes as follows at paragraph 90: I conclude that “core policy” government decisions protected from suit are decisions as to a course or principle of action that are basedon public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith.This approach is consistent with the basic thrust of Canadian cases on the issue, although it emphasizes positive features of policydecisions, instead of relying exclusively on the quality of being “non-operational”.

It is also supported by the insights of emergingjurisprudence here and elsewhere. This said, it does not purport to be a litmus test. Difficult cases may be expected to arise from time totime where it is not easy to decide whether the degree of “policy” involved suffices for protection from negligence liability. A black andwhite test that will provide a ready and irrefutable answer for every decision in the infinite variety of decisions that government actorsmay produce is likely chimerical.

Nevertheless, most government decisions that represent a course or principle of action based on abalancing of economic, social and political considerations will be readily identifiable. [17] In this instance, in analogizing that to the decision of the court in Imperial Tobacco, Her Majesty submits that such a policydecision is, in fact, at issue in this case. That is to say that the statement that the licences would be processed within seven days iseffectively a policy decision communicated on the website. The fact the government misses the seven days does not, in itself, give rise toa private law duty of care.

Here, the statement, which is effectively characterized as the policy decision having been communicated onthe website, is argued or submitted to have been a balancing of security interest, economic, social, and political interest. In other words,it is the sort of government action that constitutes a policy decision immune from liability. [18] In my view, it is not clear to me, based on all of the pleadings, why the statement is on the website. It is not self-evident to methat the statement itself is an expression of government policy.

In my view, the statement strays far from the statement that was at issuein Imperial Tobacco. I find at the end of the day, though I am grateful for the submissions made and the authorities provided, that thereis a triable issue in this case as to whether or not the statement that Mr.

Gilmour purports to have relied on to his alleged detrimentconstitutes government policy or whether it is an operational decision. [19] As a result, I order that this matter proceed to trial and it proceed to trial on that question alone, that is, whether the Crowncould be held liable for the tort of negligent misrepresentation with respect to the representation on the website that the licencingapplications would take seven days to process.

That does not preclude the Crown from also litigating the question of whether or not Mr.Gilmour has proven his damages as claimed and whether or not he has taken appropriate steps to mitigate his damages. I say only thatthe issue of liability is the question of negligent misrepresentation and not a question of contract or otherwise. (REASONS CONCLUDED)