2015 QCCQ 10530, 2015 QCCQ 10530

Zhang c. Calgary (Police Service) 2015 QCCQ 10530 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-141090-136 DATE: July 16, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ QIANG ZHANG […] Montréal (Québec) […] Plaintiff v.

CALGARY POLICE SERVICE 5111, 47 e Street NE Calgary (Alberta) T3J 3R2 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mr Qiang Zhang, sues the Calgary Police Service, for damages in the amount $ 7,000, the limit of the Small Claims Division at the time he brought his proceedings on December 16, 2013. [ 2 ] Mr Zhang alleges that Mr Sean Chu, who was, at the time, a policeman with the Calgary Police Service, working in Calgary, Chinatown, tried to deprive him of the right of complaining to Health Canada about fraudulent commercials made by a party known as “Jerry Canada”, thereby depriving him of “citizen’s rights as a resident of the Province of Quebec”. [ 3 ] He also alleges that Mr Chu was protecting Jerry Canada in performing human trails in connection with a seal-oil medicinal product marketed by Jerry Canada in contravention of rules established by Health Canada. [ 4 ] He also makes certain allegations about harassing phone calls received from “Jerry Business Canada”.

Neither Jerry Canada nor Jerry Business Canada is named as a defendant. [ 5 ] The Calgary Police Service brought an Amended Contestation dated September 11, 2014, raising a variety of grounds for the dismissal of the Demand, including both legal and factual issues. [ 6 ] Among these grounds was a series of issues raised in paragraph 8, where the Defendant seeks the

summary dismissal of the Demand for the following reasons:

a) Calgary Police Service is not a proper party as it is not an entity that can be named in a law suit, having no employees and no responsibility for the action of any police officer affiliated with the Calgary Police Service;

b) Our Court lacks jurisdiction against the Calgary Police Service and any police officers within it, such jurisdiction been reserved to superior courts;

c) The court having jurisdiction would be a court in Calgary, Alberta, not the Court of Quebec, in Montreal;

d) The claim is abusive, frivolous and vexatious;

e) The pleadings disclose no cause of action.

[paraphrased, not a direct quote] [ 7 ] The matter was assigned by the coordinating judge to have this preliminary ground presented and decided immediately, rather than placing the case on the role for hearing on the merits.

The matter came up before one of my colleagues, who decided that, given the necessity of hearing evidence on the motion, it would be better that the preliminary grounds be heard together with the case on the merits to avoid duplication and it was further decided that this hearing should take place by video-conference to avoid the necessity of travel. [ 8 ] The case was then referred to the undersigned by the coordinating judge in order that such a hearing be conducted. [ 9 ] At the hearing before me, on May 25, 2015, Mr Zhang and a mandarin interpreter were present, and the Calgary Police Service represented by Sergeant Michael Power, was in communication through the means of a video-conference call. [ 10 ] Those present in Montreal in the Court room could see Sergeant Power and the expert witness Douglas Merchant, a lawyer of the Province of Alberta, on a large screen and we could hear the invoices adequately through the screens speakers, and Messrs Power and Merchant could see the Judge, Mr Zhang and the interpreter simultaneously, and hear their voices clearly. [ 11 ] Although there were some technical glitches from time to time, the arrangement proved satisfactory for the purposes of the deliberations that took place. [ 12 ] The Court decided to first hear Mr Merchant, as an expert witness.

He testified as to the application of the Laws of Alberta to the issues raised referred to above as items a, b and c.

Items d and e were not the object of any debate as these would have required that the case and the defence proceed further into the evidence. [ 13 ] After the Court heard these arguments, the testimony of Mr Zhang, dealing with all the factual issues of the case, was heard and the case was suspended before proceeding to the hearing of the factual defence of the Calgary Police Service. [ 14 ] It was understood that the Court would rule first on whether, based on the arguments raised, it should proceed further in the matter.

The proper Defendant [ 15 ] Douglas Merchant, who was heard under oath as an expert witness in matters of Alberta Law, informed the Court that, according to the Law of Alberta, and particularly the Police Act [1] , any action of a civil nature brought against the Police for a tort., must be brought against the Chief of Police, and therefore, not against the Police Service as an entity.

The relevant provisions read as follows: 39(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). [ 16 ] Mr Merchant submitted as authority the case of Gustavsen v. City of Calgary [2] , a judgment of the Alberta Court of Queen’s bench, where an action brought against Calgary Police Service was struck on the grounds that any action must be brought against the Chief of Police and not the Calgary Police Service.

Amendment [ 17 ] Mr Merchant informed the Court that as far as Alberta Law is concerned, it would not be appropriate to permit an amendment of a proceeding to join the Chief of Police as a party, under the applicable “misnomer” rule. He referred to another case, Backtrax Roadhouse Inc. v. Scott [3] , where it was held that the Calgary Police Service was not simply a misnomer for the Calgary Police Chief. Reference is made to an English case, Davis v.

Elsby Brothers Ltd [4] . [ 18 ] In applying that case, the Alberta Master, an officer of the Superior Court, applied that this was not a case of misnomer, because the person reading the statement of claim would realise that the drafter of the claim operated under the mistaken belief that the Calgary Police Service is liable for the tort of police officers, where only the Chief of Police is thus liable. The intention to sue the Calgary Police Service was not an error as to the name of the party; it was an error of law, as to who the appropriate defendant ought to be.

Applicable low and the lack of any case against Calgary Police Service [ 19 ] In the Court’s view, the liability of an entity or person in authority with respect to a police operation within Alberta for the fault of a police officer truly or purportedly acting in his duties, is a matter that would be decided under Alberta Law, if the case were heard in Quebec, even if the tort [5] occurred here. [ 20 ] In other words, the legal relationship giving rise to the vicarious liability for the conduct of the police officer, who was not sued, is a matter determined by the Statutes of Alberta, not the Quebec Civil Code .

[ 21 ] On that basis, accepting the opinion evidence as to Alberta law, the Court should dismiss the action as against the Calgary Police Service, an entity which may or may not have some semblance of legal personality, but which would not be considered as liable for the action or omission of one of its police officers, since that liability fastens exclusively on the Chief of police.

The right to amend and prescription and limitation periods [ 22 ] This led to a discussion of whether an amendment ought to be permitted to substitute the proper Defendant at this late stage. [ 23 ] This led in turn to a discussion about the question of prescription or limitation.

Mr Merchant advised the Court that the applicable limitation period in Alberta is two years from the date on which the Plaintiff acquires knowledge of the cause of action. [ 24 ] In the Court’s analysis, because a new defendant would be substituted, it would be, as far as that individual is concerned, the first moment in time when he was sued, so that the relevant limitation period or prescription as the case may be, would apply counting between the date when the Plaintiff first has knowledge and could therefore sue and the date of the amendment. [ 25 ] In the Court’s view, whether the two-year limitation period of Alberta Law or Quebec’s three-year prescription is applied, the earliest possible date on which an amendment could have been considered as having been made was the moment when the Court raised the question. [ 26 ] The Plaintiff did not seek to amend his proceedings at any earlier time. [ 27 ] Though the Plaintiff did not asked for the right to amend in a formal way at the hearing, it is still appropriate to decide whether, he in fact, has that right, because he would, presumably amend if invited to do so. [ 28 ] Just as he could not have brought a new action on May 25, 2015, because more than three years had lapsed from the date of the alleged occurrence of April 13, 2012 that he complains of, he should not be permitted to amend by making the Calgary Police Chief a party to the proceedings at this time. [ 29 ] For those reasons alone, the case should be dismissed.

Territorial jurisdiction and forum non conveniens [ 30 ] There was another interesting issue that was raised that the Court wishes to comment upon, and that is the matter of territorial jurisdiction and forum non conveniens. [ 31 ] In reading the proceedings, it was by no means clear that the Plaintiff intended to allege any occurrence in the Province of Quebec.

He was alleging activities that presumably took place in Calgary when he said that Mr Chu was protecting Jerry Canada or Jerry Business Canada, a business that, presumably, carries out its affairs in Calgary. [ 32 ] There was, however, the allegation that Sean Chu called the Plaintiff to prevent him from providing more “proofs” to Health Canada. [ 33 ] Mr Zhang’s testimony was heard on this point, and this served to clarify his written proceedings. His assertion is that Mr Chu called him on his cell phone at a time when he had moved to Montreal.

He was willing to provide evidence of the date on which he moved, to establish this fact. [ 34 ] He went on to speak on the consequences of the threat that Mr Chu allegedly made during this cell phone call to arrest him if he did not cease his activities, denouncing to Health Canada or otherwise, the complaint he had against Jerry Canada. [ 35 ] This testimony clarifies what was not clear in the proceedings, that is that the communication was received in Montreal and the harm to Mr Chu, consisting in moral damages and some economic loss associated with his business, took place here. [ 36 ] That would have been enough to give jurisdiction to the Court in an action for extra-contractual liability, and would have also been sufficient to establish a connection justifying that the case be heard in Montreal rather than in Calgary. [ 37 ] The action does not concern the activities of Jerry Canada per se , but rather what was allegedly perceived as a malicious interference by the Police Officer with the Plaintiff’s freedom to make his complaint to Health Canada or to otherwise express his thoughts about the business activities concerned. [ 38 ] Of course, on a Motion to dismiss, the Court will make no comment on whether it accepts this testimony as accurate and sincere, nor whether the Plaintiff was or was not truly being investigated by the Calgary Police Service for anything in connection with statements he may have made about this third party. [ 39 ] But, given the receipt of the communication in Montreal, as alleged, at least from the point of view of jurisdiction and forum, it would have been both legally correct and appropriate for the proceedings to be brought in Montreal.

CONCLUSION [ 40 ] In

summary then, the Court finds that even if Mr Zhang’s allegations about Sean Chu’s telephone call and the effects that the call had on Mr Zhang were proved, the action would be ill-founded in law as against the Calgary Police Service who, under the law that applies to it, cannot have liability for the extra-contractual fault committed by one of its police officers in the actual or purported exercise of his / her duties. This puts an end, definitively to the proceedings. [ 41 ] This is a case where costs should not be awarded.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s Demand; THE WHOLE , without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: May 25, 2015