Cox v. The City of Surrey et al Date:, 2014 BCPC 388

Citation: Cox v. The City of Surrey et al Date: 20141014 2014 BCPC 0388 File No: C75076 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: GORDON COX CLAIMANT AND: THE CITY OF SURREY, CITY OF SURREY FIRE SERVICES, THE CITY OF SURREY BY-LAW SERVICES, MINISTER OF JUSTICE AND ATTORNEY GENERAL, JOHN DOE #1, JOHN DOE #2, JOHN DOE #3, and FIRSTONSITE RESTORATION L.P. DEFENDANTS RULING ON APPLICATION OF THE HONOURABLE JUDGE J.A. OULTON Appearing in person: G. Cox Counsel for City of Surrey Fire Services : B. Lee

Counsel for Minister of Justice and Attorney General : J. Rosenthal Place of Hearing: Surrey , B.C. Date of Hearing: October 8, 2014 Date of Judgment: October 14, 2014 [ 1 ] THE COURT : This is an application brought by the defendant Minister of Justice for the Province of British Columbia to have a claim against it, the RCMP who it represents, dismissed for disclosing no cause of action. The remedy is sought under Rules 16(6)(

o) and 7(14) of the Small Claims Rules . [ 2 ] This application was heard at the same time as one brought by the claimant, Mr. Cox, under Rule 1, seeking to have his claim transferred to the Supreme Court of British Columbia because his damages exceed the monetary jurisdiction of Provincial Court. [ 3 ] Mr. Cox is self-represented and he did not take the opportunity to seek legal advice before bringing his application, as the judge at the settlement conference held in August 2014 had suggested he do. [ 4 ] I adjourned Mr.

Cox's application generally, holding that the ten single-spaced handwritten pages he disclosed in support of the damages he claims, in excess of a hundred thousand dollars, were not sufficient details of his damages as was ordered by the settlement conference judge on August 13th, 2014. Counsel for the City of Surrey and the Attorney General of Canada submitted that the damages claimed by Mr. Cox were not properly supported. [ 5 ] I explained to Mr. Cox that what was sought was support of his damages beyond his own list.

While he itemized what he claims his damages are and in that sense provided details, he did not substantiate any of the damages he claims were caused by what he alleges to have been the negligence of the defendants. He would also benefit from legal advice as to the additional costs and risks to bringing an action in the Supreme Court. [ 6 ] I adjourned this application a week, that is the application by the counsel for the Attorney General of Canada, to allow Mr.

Cox time to fully review the book of authorities provided by that defendant, although the cites and excerpts of the three main decisions relied on had been previously provided. I also suggested Mr. Cox might again take the opportunity to obtain legal advice. BACKGROUND - STATEMENT OF CLAIM [ 7 ] Mr.

Cox is suing the City of Surrey, John Doe #1, 2 and 3, the Minister of Justice for the Province of British Columbia, and FirstOnSite Restoration for damages that he alleges were sustained to his property at 15157 - 88th Avenue in Surrey, British Columbia between February and April 11th, 2013. [ 8 ] Taking as true what is in his Statement of Claim, on April 11th, 2013, a representative of the RCMP notified him of incidents that had occurred at his property and he returned home. Mr.

Cox left the Province of British Columbia in February 2013 without telling anyone, in particular his neighbours or the police, that he was going to be away. He went to Alberta and was unexpectedly detained there longer than expected, he says, because of a snowstorm. [ 9 ] In the time he was away he alleges that the RCMP and the City of Surrey were aware that people had broken into his house and were squatting there. He says police attended the property regarding drugs, stolen property and even catching three individuals, the defendants John Doe #1, #2 and #3, in the act of removing Mr.

Cox's possessions from the property. [ 10 ] Mr. Cox says the RCMP are responsible for the damage to his house because they failed to notify him in a timely manner and they simply allowed the damages to continue. When Mr. Cox returned to his property he discovered that it had been destroyed. Water had been left running in the basement and all the copper wiring and plumbing was removed from the property, in addition to his personal belongings being stolen. [ 11 ] FirstOnSite was contacted by the City of Surrey to secure the property in April and May of 2013 according to the Reply filed by the City of Surrey. Mr.

Cox alleges that in securing the property that caused even further damage as they are alleged to have left the water running freely in the basement. THE POSITION OF THE DEFENDANT ATTORNEY GENERAL OF CANADA ACTING FOR THE RCMP [ 12 ] The RCMP became involved on March 15th, 2013 when a police officer found Mr. Cox's van being towed by an individual who was stopped and ticketed for three violations. The officer investigating attended the address associated to the registered owner of the van, Mr. Cox's property at 15157 - 88th Avenue in Surrey, British Columbia.

The officer concluded the property was abandoned because: the property was strewn with garbage and scrap items; there were signs of vehicles being recently removed from the property; there were signs of other large items being moved on and off the property; the house appeared full of property as if owned by a hoarder; a majority of the windows of the property were broken open; the house appeared abandoned; there appeared to be no hydro to the house. [ 13 ] In trying to contact the registered owner of the van and the owner of the property, Mr.

Cox, the investigating police officer made inquiries of numerous agencies, including ICBC, the Ministry of Social Development, CPIC and the police in Alberta. The investigating police officer spoke to Mr. Cox's neighbours about Mr. Cox's whereabouts, and also spoke to them as to whether they could provide witness statements as to suspected criminal activity at Mr. Cox's property. The investigating police officer contacted By- law officers to inspect and secure the property, and met with them in order to assist them in inspecting the property. The investigating

police officer sent a letter to Mr. Cox explaining his investigation and requesting that Mr. Cox get in touch. The investigating policeofficer searched the property for evidence and submitted several items for forensic testing. The investigating police officer contactedmetal recycling companies to search for possible suspects. The investigating police officer periodically attended the property, despite itbeing outside his designated zone, both alone and with other officers. [14] On March 22nd, 2013, the investigating police officer attended the property and saw a male running away from the property.

He stopped the male but determined he did not have sufficient grounds to arrest the male for trespassing. On April 5th, 2013, anotherpolice officer responded to a call from a neighbour of suspicious circumstances at the property, but when he arrived he found theproperty to be vacant. On April 26th, 2013, two other police officers attended the property in response to a call from Mr. Cox, who hadreturned to his property and found a male and his vehicle on the property. The police explained to Mr. Cox that the male thought theproperty was abandoned and that the property on it was abandoned, too.

Eventually the male was allowed to return the items he hadtaken and leave the property. Between May and October 2013 the investigating police officer attended the property on various occasionsto continue his investigation. THE APPLICATION TO HAVE THE CLAIM DISMISSED [15] There is a policing agreement between the Province of British Columbia and the Government of Canada, pursuant to s. 14 of thePolice Act R.S.B.C. 1996 c. 367, and s. 20 of the Royal Canadian Mounted Police Act R.S.C. 1985, C.R-10, authorizing the RCMP tocarry out the powers and duties of a provincial police force.

Pursuant to s. 11(1) of the Police Act, the Minister of Justice for B.C. isjointly and severally liable for torts committed by provincial constables in the performance of their duties. [16] In this case, the applicant argues that case law has established that the police do not owe a victim or an alleged victim of crime aprivate law duty of care, except in limited circumstances that do not apply in this case. [17] The RCMP owe a duty to the public to conduct investigations.

The duties should be discharged impartially and with a view tothe public good. [18] In certain limited circumstances, police have been found to owe a private law duty to individuals: Police have been held to owea private law duty of care to the suspects of their criminal investigations: Hill v. Hamilton-Wentworth Regional Police, 2007 SCC 41. Police have been held to owe a private law duty to warn potential victims where they know or ought to know that there is a foreseeablerisk of harm to a narrow and distinct group of potential victims: Jane Doe v.

Board of Commissioner of Police for the Municipality of Metropolitan Toronto, (1990) (ON SC), 72 D.L.R. (4th) 580 (OCA). [19] In Wellington v. Ontario, 2011 ONCA 274, leave to appeal dismissed [2011] S.C.C.A.

No. 258, Justice Sharpe (with JusticesMoldaver and Armstrong concurring, three justices of the Ontario Court of Appeal) discussed the distinction between public and privateinterests at paragraph 44: There is now a well-established line of cases standing for the general proposition that public authorities, charged with making decisionsin the general public interest, ought to be free to make those decisions without being subjected to a private law duty of care to specificmembers of the general public.

Discretionary public duties of this nature are "not aimed at or geared to the protection of the privateinterests of specific individuals" and do "not give rise to a private law duty sufficient to ground an action in negligence." [20] Wellington involved a fatal shooting by a police officer that was allegedly improperly investigated by the Special InvestigationsUnit, a statutory body in Ontario charged with investigating the circumstances of serious injuries and deaths that may have resulted fromthe actions of police officers.

The plaintiffs, the family of the deceased and his estate, were alleging that the police owed them a privatelaw duty to conduct a proper investigation into the actions of the two officers involved in the incident. [21] In Wellington, Justice Sharpe also commented on the case law in the area of police owing a duty of care to victims at paragraph52: In my view, this is not a case where a trial is required to resolve the duty of care issue. A duty of care has been excluded by priordecision of this court, the B.C.

Court of Appeal and numerous trial courts. ... it has been repeatedly held "that it is appropriate to analyzeclaims alleging negligence against public authorities based on the exercise of discretionary statutory duties at the pleading stage todetermine whether there is any possibility that a duty of care can be found to exist." [22] According to Justice Sharpe, unlike novel tortious claims where it is unclear whether the courts will find a new duty of care, aprivate law duty owed to victims of crime by a public body, including the police, namely the duty to conduct reasonable investigations,has been addressed by the higher courts and has not been found to be a cause of action at law. [23] In a recent B.C.

Supreme Court trial decision, Burnett v. Moir, 2011 BCSC 1469, the plaintiff was assaulted by an unknownassailant in a nightclub and sustained a moderately severe brain injury. He alleged that the police did not do enough in the immediateaftermath of the assault to identify witnesses and obtain information that may have assisted in determining who the assailant was.

Theplaintiff sought to establish that the members of the Delta police force who investigated the incident owed him a private law duty of carefor acts or omissions committed in the exercise of their public responsibility to preserve the peace and prevent the commission ofoffences. [24] The judge in that case, Mr. Justice Cullen, drew a distinction between cases where a private law duty of care is owed by police,and those where it is not, at paragraph 405: The cases in which police failure to act, or negligent actions in connection with a potential victim have engaged a duty of care, in

Mooney, Jane Doe or Schacht, either involve specific ascertainable threats to specific ascertainable victims or specific ascertainablethreats to a particular class of victim… as noted by Justice Sharpe in Wellington v.

Ontario in connection with the Jane Doe case, thevictims were part of a narrow and distinct group facing a specific threat. [25] Justice Cullen further held it would be speculative whether the failure to investigate would cause the harm alleged in that caseat paragraph 436: ... [T]he relationship between an investigator and a victim, at least where the substantive harm has already been caused by a third party,is removed and indirect.

Moreover, the asserted foundation to finding proximity - the negligent failure to facilitate a civil action againstthe perpetrator of the substantial harm - runs directly counter to the public interest in ensuring that public officials do not perform theirduties and functions to serve private interests. Paragraph 437 of the Burnett case reads: [437] In this case, it is alleged that not enough was done in the immediate aftermath of the offence to identify witnesses and obtaininformation which may assist in determining who the assailant was.

That assertion is somewhat speculative, as is the inference that amore comprehensive initial investigation would lead to a successful action or result in the recovery of damages.

Finally, paragraph 443 of that decision reads: [443] As I see it, while there may be particular cases where the evidence justifies finding a proximate relationship between a policeinvestigator and the victim of an offence being investigated, the circumstances would need to overcome both the inherently indirectnature of the relationship, and the critically important precept that criminal investigations do not serve private interests. [26] In

summary, as with the tort of negligence generally, the tort of negligent investigation requires not only the relationship to beone of sufficient proximity, but also that the damages arising from the alleged negligent investigation be reasonably foreseeable. ANALYSIS [27] In this case, Mr. Cox asserts that the damages happened to his property because the police did not advise him of it. As he statedin his submissions to me, he only needs to show a chance of success in his claim against the RCMP to be successful in having theirapplication dismissed. Did the RCMP have a duty to warn Mr. Cox?

The police had no knowledge of Mr. Cox. [28] Turning to the facts of the Jane Doe case, Jane Doe was a woman who lived in an apartment building that the police in Torontoknew was an apartment building that a serial rapist was targeting and they failed to warn Jane Doe and she wound up being assaulted bythe serial rapist and sued the police in the aftermath. So, she is a person who lived in the apartment building police expected the serialrapist to target who was not warned by the police.

In that particular case the court held the police had a duty to warn Jane Doe, thewoman who lived in the apartment building, because she was a member of a specific and ascertainable group facing a specific threat. The threat was the serial rapist. The group included any woman who lived in that apartment building. [29] In the case of Mooney v.

BC (Attorney General), 2004 BCCA 402, referenced in the decision of Burnett and Moir, to give anexample of where courts have been willing to find duties of care owing by investigators to victims of crime, the trial judge in theSupreme Court of British Columbia: ... found a duty of care and a breach of the standard of care by police in circumstances where the police failed to investigate threateningbehaviour of the plaintiff Bonnie Mooney's former spouse, Ronald Kruska.

Seven weeks after the failed investigation, Kruska came toBonnie Mooney's house and seriously injured her daughter, the plaintiff Michelle Mooney, shot and killed a friend of Ms. Mooney's andcaused significant psychological trauma to the plaintiff Kristy Mooney who was present at the time ... The trial judge dismissed the action, though, "finding no causal connection between the failure to investigate and the subsequent harm tothe various plaintiffs." [30] The Court of Appeal upheld the trial judge’s decision dismissing the action on the issue of causation.

Two justices of the Courtof Appeal agreed with the trial judge. There was a dissenting judgment, Justice Donald would have found causation, and he foundproximity between the police and Bonnie Mooney based on the fact that: Bonnie Mooney had sought police assistance and had a direct engagement with an officer when she presented her complaint. She had apressing need for protection as a potential victim of Kruska's violence and the police should have recognized that.

She cannot be said tofall into a large indeterminate class; to the contrary she was a person ... who had a "special distinctive risk." So, that was a case where the police were held to have a duty of care at the first stage of the analysis, and those were the circumstances. [31] Another example is the Schacht case: O’Rouke et al v. Schacht, (SCC), [1976] 1 SCR 53. That was a case

where users of the highway were held to be in danger when the police failed to replace a sign, warning of an open culvert under construction on a highway, after an accident. So, in other words, the specific threat was the open culvert under the highway and the specific group of ascertainable victims were the users of that highway, and the police were held to have failed in their duty to warn in that case. [ 32 ] Mr. Cox was an individual who left the province without leaving his contact information, telephone or e-mail with either the police or a neighbour before he left.

When he left there was no specific ascertainable threat to Mr. Cox. He was not a specific ascertainable victim, nor did he belong to a class of specific ascertainable victims. And I have just given some examples of what the courts have held to be specific victims, or specific groups of victims, and why. It took the investigating police officer almost a month to track him down. I find in these circumstances police were not under a duty to warn Mr. Cox, and there is no cause of action in negligence on that basis disclosed in the pleadings. [ 33 ] What about the tort of negligent investigation? First of all, Mr.

Cox was not a suspect. He was an alleged victim of crime in months when he was out of the province. Based on Wellington , the RCMP did not owe a private law duty of care to Mr. Cox. Based on cases like Mooney , which I have just described, Mr. Cox was not someone who brought himself to the attention of the police either before he left the province, nor was he someone who faced a specific ascertainable threat. I find he was not sufficiently proximate to the RCMP to give rise to a private law duty of care owed to him by the RCMP in negligent investigation. [ 34 ] In addition, as stated in Burnett v.

Moir and Callan v. Cooke , 2012 BCSC 1589 , Mr. Cox's claim of negligent investigation is too speculative. There is nothing in the pleadings to support a finding that but for a negligent investigation, Mr. Cox would not have been harmed. Absent limited exceptions, which do not apply to Mr. Cox, the RCMP do not generally owe a private duty of care to victims or potential victims with regards to their investigation. They owe a duty to the public to carry out proper criminal investigations. Mr.

Cox in his submissions spoke of the letter he received April 10th, 2013 from the investigating police officer, who was trying to get in touch with him, and the letter detailed the investigation to date, and the officer's suspicions, advising him of what had been going on in his property. Mr. Cox said that showed that there was a foreseeability of harm and the police were aware that there was a foreseeability of harm to his property. But foreseeability is a question that arises once there is a specific duty of care which is what is lacking in this case.

As an alleged victim of crime, who did not have a proximate relationship to the police, there is no private law duty of care owed by the police to Mr.

Cox, and one does not come to the question of the foreseeability of harm without finding first that duty of care to exist. [ 35 ] In conclusion, while the application to dismiss is a tool that should be used carefully so as not to destroy legitimate claims, pleadings should be struck if they reveal no cause of action, for the efficient and productive use of court time. [ 36 ] In this case, I find that the Statement of Claim with regards to what I have characterized as possibly a claim in negligent investigation or failure of a duty to warn Mr.

Cox by the RCMP, do not reveal a cause of action, and I therefore dismiss the claim against the Minister of Justice for the Province of British Columbia. (RULING CONCLUDED)