Bagnell v. Taser International, Inc.

2006 BCSC 1857 Bagnell v. Taser International, Inc.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bagnell v. Taser International, Inc., 2006 BCSC 1857 Date: 20061108 Docket: S064046 Registry: Vancouver Between: Janna Lavaughan Bagnell, Robert William Bagnell, and Patricia Louise Gillman, Personal Representative of Robert Wayne Bagnell, Deceased Plaintiffs And: Taser International, Inc., M.D. Charlton Co. Ltd., City of Vancouver, Vancouver Police Board, Vancouver Police Department, Chief Constable Jamie Graham, Mark Steinkampf, Don Chapman, James Flewelling, Evan Williams and Gary Oleskiw Defendants Before: The Honourable Madam Justice Wedge Oral Reasons for Judgment In Chambers November 8, 2006 Counsel for Plaintiffs A.C. Ward Counsel for Defendants City of Vancouver, Vancouver Police Board, Chief Constable Jamie Graham, Mark Steinkampf, Don Chapman, James Flewelling, Evan Williams and Gary Oleskiw T. Zworski Place of Trial/Hearing: Vancouver, B.C. [1] THE COURT: Robert Bagnell died in police custody on June 23, 2004. The plaintiffs, who are members of his family, have brought an action under the Family Compensation Act, R.S.B.C. 1996, c. 126, claiming Mr. Bagnell died as a result of the use of a "taser" by police officers in the Vancouver Police Department. The plaintiffs have named as defendants the police officers involved, the Chief Constable, the City of Vancouver and the Vancouver Police Board, (collectively referred

to as the "Police Defendants"), as well as the manufacturer and the Canadian distributor of tasers. [2] The plaintiffs allege primarily that the Police Board was negligent in purchasing and supplying its police officers with tasers and by failing to ensure the tasers were in fact a non‑lethal means of intervention. [3] The Vancouver Police Board has brought this application under Rule 19(24)(a) of the Rules of Court for an order dismissing the action against the Police Board on the basis that it discloses no reasonable claim. The Police Board argued that it cannot be liable because it does not, and did not, owe the plaintiff a private law duty of care in relation to the alleged acts or omissions. More specifically, it argued there is not sufficient proximity between it and the plaintiffs to establish a duty of care. [4] The plaintiffs argued that the Police Board made the operational decision to purchase and supply its police officers with tasers and, as such, owed the plaintiffs a private law duty of care. Issue [5] The narrow issue is whether it is "plain and obvious" that the Police Board did not owe the plaintiffs a private law duty of care such that the action against it is certain to fail. Allegations Contained in the Pleadings [6] The essence of the plaintiffs' claim against the Police Board is that Mr. Bagnell died as a result of the Police Board's negligence or gross

negligence. The particulars of the Board's negligence are contained in paragraph 28 of the statement of claim, and are as follows: (a) failing to instruct, train, supervise or control individual police defendants; (b) supplying the individual police defendants with tasers; and (c) failing to ensure the tasers were independently tested and properly maintained. [7] Also relevant to this application are the facts alleged in other paragraphs of the statement of claim. They are as follows: · That the individual police officers involved in Mr. Bagnell's death were employed, trained and supervised by the Police Board (para. 17); · That the police board purchased the tasers and supplied them to the individual police officers (paras. 23 & 24); and · That although the Police Board knew many people have died after being shot by tasers, the Police Board continued to supply them to its officers for use as a non‑lethal means of intervention (para. 33). The Law 1. Applications under Rule 19(24)(a) [8] It is common ground between the parties that for purposes of this application the allegations of fact in the statement of claim must be accepted as if proven: Rule 19(27); Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 ["Hunt"]. [9] The Police Board accepts that the test is a stringent one. Only if the action is certain to fail should the claim be struck. The Court in Hunt said the following at

page 980: Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) ... is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) ... should the relevant portions of a plaintiff's statement of claim be struck out ...

2. Test for Establishing Existence of Duty of Care [10] In Cooper v. Hobart, [2001] 3 S.C.R. 537 ["Cooper"], the Supreme Court of Canada, affirming the two‑stage test, articulated in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.) with respect to the existence of a private law duty of care. At the first stage, the question is whether a prima facie duty of care exists. If so, the question at the second stage is whether there are policy considerations that might negate the imposition of the duty. [11] The first‑stage inquiry involves two issues: (a) the case must fall within, or be analogous to, a category of cases in which a duty of care has previously been recognized; and (b) it is not enough that the harm complained of is a reasonably foreseeable consequence of the alleged breach. There must also be sufficient relational proximity to establish a prima facie duty of care. The focus of the inquiry at this stage is the nature of the relationship between the plaintiff and the defendant (Cooper at para. 29). [12] The second stage inquiry involves policy considerations, not with respect to the relationship between the parties, but as to the effect of imposing a duty of care in the particular circumstances. [13] The Police Board says there is insufficient proximity between it and the plaintiffs to create a prima facie duty of care. The Board's functions, it argued, are

analogous to those of the statutory regulator in Cooper. In that case the Supreme Court of Canada held that any factors giving rise to proximity must be found in the legislation governing the public body in question. [14] The plaintiff in Cooper was an investor who alleged that the Registrar of Mortgage Brokers was liable in negligence for failing to properly oversee the conduct of an investment company which the Registrar had licensed. The question was whether the Registrar owed a private law duty of care to members of the investing public, giving rise to liability in negligence for losses suffered by the investors of Eron Mortgage Corporation. [15] The court concluded that the regulatory scheme governing mortgage brokers provided only a general framework to ensure the efficient operation of the mortgage marketplace. The Registrar's overarching duty was to the public as a whole. At para. 49, the Court said the following: The Registrar must balance a myriad of competing interests, ensuring that the public has access to capital through mortgage financing while at the same time instilling public confidence in the system by determining who is "suitable" and whose proposed registration as a broker is "not objectionable". All of the powers or tools conferred by the Act on the Registrar are necessary to undertake this delicate balancing. Even though to some degree the provisions of

the Act serve to protect the interests of investors, the overall scheme of the Act mandates that the Registrar's duty of care is not owed to investors exclusively but to the public as a whole. [16] The Court observed at para. 50 that it could not construe the statute to impose a duty on the Registrar specific to investments with mortgage brokers because "Such a duty would come at the expense of other important interests, of efficiency and finally at the expense of public confidence in the system as a whole." [17] Similarly, in Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562 the Court held there was insufficient proximity between a person who deposited money into a lawyer's trust account and the Law Society responsible for setting the standards of the legal profession. At para. 14 the Court said the following: The Law Society Act is geared for the protection of clients and thereby the public as a whole, it does not mean that the Law Society owes a private law duty of care to a member of the public who deposits money into a solicitor's trust account. Decisions made by the Law Society require the exercise of legislatively delegated discretion and involve pursuing a myriad of objectives consistent with public rather than private law duties.

3. Private Law Duty of Care under the Police Act [18] I will turn now to the issue of whether there exists, in the circumstances of this case, a private law duty of care under the Police Act, R.S.B.C. 1996, c.

367. The Police Board argued that any factors giving rise to proximity must be found in the Police Act, which is the legislation creating and governing the Police Board. It said a reading of the statute discloses that the role of the Police Board is limited to setting policy by determining the priorities, goals and objectives of the Vancouver Police Department. Assuming it was the decision of the Police Board to purchase the tasers and arm its police officers with them, it argued that the decision was a policy decision and not an operational one. As such, said the Police Board, there is insufficient proximity between the Board and members of the public whose family members are harmed by individual police officers using tasers as a means of intervention. [19] The plaintiffs, on the other hand, submitted that the decision to buy and arm its police force with tasers was an operational decision that only the Police Board could make. [20] The Police Board relied on the decision of the Supreme Court of Canada in Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263 ["Odhavji"] to argue that it does not owe a private duty of care to provide proper policing services. In that case the Court concluded there was insufficient proximity between the municipal police board and individual members of the public to establish a duty of care. [21] In Odhavji a man was shot and killed by municipal

police officers in Toronto. The family of the deceased commenced an action against, among others, the Toronto Police Services Board. The action was not related to the allegedly wrongful death but to the alleged failure of the police officers involved in the shooting to cooperate with the investigation into the death. That failure, they said, caused them, among other things, to suffer mental distress. [22] It is significant to note that the plaintiffs in Odhavji did not allege the Board was under a private law obligation to ensure that its police officers cooperated with the investigation into the death of the deceased. They alleged that the Board had a private law duty of care to ensure that police officers, as a matter of general policy, cooperated with investigations into their conduct. The Court concluded there was a lack of a close causal connection between the alleged misconduct and the harm. [23] It is also significant to note that the Court found the police chief had the statutory authority to supervise the day‑to‑day conduct of police officers to the exclusion of the Board. The Court noted (at para. 6) a specific provision of the Police Services Act, R.S.O. 1990, c. P.15, which precluded the Board from directing the police chief in operational matters. The provision, s. 34(4), provided as follows: The board shall not direct the chief of police with respect to specific

operational decisions or with respect to the day‑to‑day operation of the police force. [24] According to the Court, this lack of involvement by the Board in the operational matters of its police force substantially weakened the nexus between the Board and members of the public injured as a consequence of police misconduct (Odhavji at para. 64). [25] There was also a specific provision in the Act imposing on the police chief the obligation to ensure that members of the force carried out the duties in accordance with the Act and the needs of the community. That included an obligation to ensure compliance by members of the force with internal investigations. [26] Further, the Court found that the Board's general obligation under the Police Services Act was to provide "adequate and effective police services," an obligation found in s. 139 of the statute. The Board had the broad discretion to implement general policies designed to provide those services, but was not under any express obligation to ensure that members carried out their duties in accordance with the Police Services Act. More specifically, there was nothing in the statute requiring the Board to enact a general policy with respect to officers cooperating with internal investigations. Thus, said the Court, the Board was free to determine what objectives to pursue and what policies to enact to achieve those

objectives. [27] It is significant to note, however, that the Court found sufficient proximity between the plaintiffs and the police chief - the person responsible for the operational decisions concerning the police force - to establish a private law duty of care. [28] Further, the Court acknowledged there may be circumstances in which the Board could have a positive duty to address a particular issue, even in its limited role as policy-maker. In that regard, the Court said the following at para. 66: It is possible, I concede, that circumstances might arise in which the Board is required to address a particular problem in order to discharge its statutory obligation to provide adequate and effective police services. If there was evidence, for example, of a widespread problem in respect of the excessive use of force in the detention of visible minorities, the Board arguably is under a positive obligation to combat racism and the resultant use of excessive force. But as a general matter, courts should be loath to interfere with the Board's broad discretion to determine what objectives and priorities to pursue, or what policies to enact in pursuit of those objectives. Suffice it to say, the Board's decision not to enact additional policies or training procedures in respect of s. 113(9) does not constitute a breach of its obligation to provide "adequate and effective" police

services. [29] In Ribeiro v. Vancouver (City), 2005 BCSC 395 ["Ribeiro"], it was held that the Police Board did not owe a private law duty of care to a plaintiff injured by police officers. The plaintiff suffered from a mental illness that precipitated a confrontation with officers of the Vancouver Police Department. The plaintiff sued the City of Vancouver as a result of injuries he sustained in the confrontation. The City applied to strike the action. The plaintiff brought a cross-application to add the Police Board as a defendant in the action. [30] The plaintiff in Ribeiro alleged that under the Police Act the Police Board had a duty to generate policies to assist its members in effectively and safely dealing with mentally ill citizens, and had breached that duty. The issue was whether the Police Board had a private law duty of care to create policies with the objective of providing policing services designed specifically to deal with persons suffering from mental illness. The Police Board argued there was insufficient proximity between it and the plaintiff to impose such a private law duty of care. [31] Kirkpatrick J. (as she then was), citing Odhavji, concluded that in the circumstances of the case there was no prima facie duty of care on the part of the Police Board. She observed that the Police Act made the Board responsible for setting policies for the police

department. As such, the Court should not interfere with the Board's broad statutory discretion to enact or decline to enact those policies: It is clear from the Act that the Board's function is to determine the "priorities, goals and objectives" of the police department. That is classically a policy function. The execution of the policies are, under s. 34(2) of the Act, left to the chief constable. As was the case in Odhavji, the Board is "much further in the background than the chief." There is nothing in the Act to suggest that the Board is involved in the supervision of the day-to-day conduct of the police officers. As in Odhavji, the Board supervises the chief constable who, in turn, supervises the members of the police force. [Rebeiro at para. 59] [32] Kirkpatrick J. emphasized that Mr. Ribeiro was essentially attempting by means of a tort claim to impose on the Police Board the duty to implement social policy. She concluded that such policy-making was the function of the Police Board, and accordingly there was not a relationship of sufficient proximity to justify imposing a duty of care: The unique problem posed by mentally ill persons is that they are not a "visible" minority. They may behave in a manner that is unusual, but that behaviour may not necessarily categorize them as mentally ill. Mr. Ribeiro has pleaded that members of the VPD have, in the past, wounded or

killed citizens who suffer from mental illness and has provided a list of specific incidents. But again, the duties owed by the Board under the statutory scheme are owed to the general public as a whole, not to a particular class of persons, and are inherently public and political in nature. The statute imposes an obligation to provide policing services and it would not be appropriate to 'read in' other specific duties. ... In effect, Mr. Ribeiro is attempting to litigate a social policy issue by means of a tort claim. The law is clear that the issues raised by Mr. Ribeiro in his independent tort claims against the City and the Board are more appropriately dealt with in the political and legislative context, rather than in the courts. In these circumstances, I conclude that the Board, whose primary function is to determine the policies of the police department and govern the police department, is not in a relationship of sufficient proximity with Mr. Ribeiro to justify imposing a prima facie duty of care. [Ribeiro at paras. 62-63, emphasis added] 4. Application of the Law to the Present Case Stage one: Is there a prima facie duty of care? [33] Counsel for the Police Board argued that Ribeiro, and the provisions of the Police Act itself, constitute a full answer to the plaintiffs' claim as it relates to the Board. He says Ribeiro supports the view that the Police Board's duty

under the Act is limited to establishing the priorities, goals and objectives of the police department through policies, as distinct from making operational decisions. As such, it says there is insufficient proximity between the plaintiffs and the Board. [34] With respect, I do not read Ribeiro so narrowly. [35] Consideration must be given to the factual context in which both the Odhavji and the Ribeiro decisions were decided. In each case the plaintiff alleged a failure by the Police Board to initiate certain policies of general application to its police force. In Odhavji the allegation was that the Board breached a duty of care to ensure that police officers as a matter of general practice cooperate with internal investigations. In Ribeiro the plaintiff alleged a failure by the Board to initiate a general policy concerning police interactions with the mentally ill. Both cases involved, in the words of Kirkpatrick J., classic policy functions of the Police Board. [36] In the present case, the Bagnell family is not alleging the Police Board failed to generate a policy of general application that could have prevented Mr. Bagnell's death. They allege that the Police Board, which employs the members of the Vancouver Police Department, including the Chief Constable, made a decision to purchase -- and did purchase -- tasers. They allege the Police Board supplied those tasers to its

employees for the purpose of non‑lethal policing intervention knowing that tasers had already caused the death of a significant number of people. [37] Those allegations must be accepted as true for the purposes of this application. [38] The decisions taken by the Police Board to purchase tasers and supply them to its employees for non‑lethal intervention were not policy decisions, say the plaintiffs. They are not decisions the Chief Constable is empowered to make under the Police Act. They are operational decisions that could only have been made by the Police Board, which oversees and directs the Chief Constable in his supervision of the police officers. [39] In Rebeiro, Kirkpatrick J. emphasized the prerogative of the Police Board to establish policy because in that case the plaintiff alleged a positive duty on the part of the Board to create a general policy concerning mentally ill persons. I do not read Ribeiro as saying the only role of the Police Board is to initiate policy; rather, it is only the Police Board that has the right to fulfil that role under the Police Act. [40] A plain reading of the Police Act as a whole does not support the argument that the Police Board's role is confined exclusively to policy-making. The scheme of our legislation is quite different from the legislative scheme governing the Ontario Police Services Board under consideration in the Odhavji

decision. In Ontario, the Police Services Board is expressly prohibited from making operational decisions concerning the police force. Only the police chief is empowered to make such decisions. Those specific legislative provisions played a significant role in the conclusion reached by the Supreme Court of Canada that while there was sufficient proximity between the plaintiffs and the police chief to create a private law duty of care, there was not sufficient proximity between the plaintiffs and the Police Services Board. [41] In the present case, the Police Act has created an employer-employee relationship between the Police Board and its officers, including the Chief Constable (s. 26). As employer, the Police Board has operational powers over its police officers. Section 26(3) provides as follows: (3) Subject to a collective agreement as defined in the Labour Relations Code, the chief constable and every constable and employee of a municipal police department must be (a) employees of the municipal police board, (b) provided with the accommodation, equipment and supplies the municipal police board considers necessary for his or her duties and functions, and (c) paid the remuneration the municipal police board determines. [Emphasis added] [42] The Police Board is responsible, in consultation with the Chief Constable, for setting the priorities of the police force. Section 26(4)

states as follows: (4) In consultation with the chief constable, the municipal police board must determine the priorities, goals and objectives of the municipal police department. This is the section which empowers the Police Board to set the policies which govern the police force. [43] Other powers are granted to the Police Board under s. 28(1), which bestows on it the authority to make rules respecting all aspects of policing. It provides as follows: 28 (1) A municipal police board must make rules consistent with this Act and the regulations respecting the following: (a) the standards, guidelines and policies for the administration of the municipal police department; (b) the prevention of neglect and abuse by its municipal constables; (c) the efficient discharge of duties and functions by the municipal police department and the municipal constables. [44] The Chair of the Police Board is also defined as a "discipline authority" under the Act and may receive complaints made against its municipal constables and chief constable and complaints about the police department (s. 46(1)). Further, the Police Board is empowered to impose discipline on its municipal constables and on the Chief Constable (s. 64(1)). [45] Many of these obligations are policy-making in nature, but not all of them can be so characterized. [46] Without question, the Police Board is responsible for setting

policy with respect to the Vancouver Police Department. As observed in Ribeiro, policy-making is the exclusive domain of the Police Board. However, on a plain reading of the Police Act, the role of the Police Board is not limited to setting policy. The Board is ultimately responsible for all aspects of policing performed by the Vancouver Police Department, whether they are policy or operational matters. While the Chief Constable is responsible for the front‑line supervision of police officers and, presumably, adherence to the rules and policies set by the Police Board, his supervision is clearly under the direction of the Police Board. Section 34(1) provides as follows: 34(1) The chief constable of a municipal police department has, under the direction of the municipal police board, general supervision and command over the municipal police department and must perform the other functions and duties assigned to the chief constable under the regulations or under any Act. [Emphasis added] [47] Under this legislative scheme, the Chief Constable performs the day‑to‑day supervision of the police force, but the ultimate decision-making power rests with the Police Board, whether those decisions concern policy or operational matters. The Chief Constable reports to and is answerable to the Police Board. That is not surprising, given that the Police Board is the employer of all members of

the Vancouver Police Department, including the Chief Constable. [48] In the context of the present case, it is particularly important to note that the Police Act requires the Police Board, and not the Chief Constable, to provide all members of the police force, including the Chief Constable, with the equipment the Police Board considers necessary for the officers to carry out their duties and functions (at s. 26(3)(b), reproduced above). It rests with the Police Board, at least on the face of the statute, to decide what equipment its police officers require to carry out their duties. A decision as to the nature of the equipment police officers will use in the discharge of their duties is, at least arguably, an operational one. The actual purchase of the equipment is also, arguably, operational in nature. However, it must be left to the trial judge to determine, after hearing all of the evidence, the precise role the Police Board played in the purchase of the tasers and the supplying of the weapons to the police force. [49] Although the Police Board, as employer, would otherwise be vicariously liable for torts committed by its police officers in the discharge of their duties, the Act provides that the City of Vancouver and not the Police Board is liable for any such tortious conduct (ss. 20 and 21 of the Act). In the present case, however, the plaintiffs are not seeking to

establish vicarious liability with respect to the Police Board. Here, it is alleged that the Police Board itself was negligent when it made the decision to acquire the tasers and distribute them to its police officers for use as non‑lethal means of intervention. [50] I conclude that on the facts as alleged in the pleadings, there is sufficient proximity between the plaintiffs and the Police Board justifying a prima facie duty of care. Stage Two: Policy reasons negating the duty of care [51] The Police Board argues that even if there is sufficient proximity justifying a prima facie duty of care, that duty is negated by residual policy considerations. In particular, the Police Board says the alleged wrongs in this case relate to policy and legislative actions which cannot give rise to a private law duty of care. It argues further that such a duty would expose the Police Board to indeterminate liability to all persons adversely affected by the allocation of police resources. [52] I accept that a government entity such as a municipality cannot be held liable for losses arising from the exercise of legislative or adjudicative functions. In Welbridge Holdings Ltd. v. Winnipeg (Greater), [1971] 1 S.C.R. 957 ["Welbridge"], the Supreme Court of Canada said the following: ... the risk of loss from the exercise of legislative or adjudicative authority is a general public risk and not one

for which compensation can be supported on the basis of a private duty of care. The situation is different where a claim for damages for negligence is based on acts done in pursuance or in implementation of legislation or of adjudicative decrees. [53] As is evident from the Court's decision in Welbridge, there is an important distinction between the exercise of a legislative function and an act done pursuant to the legislation. [54] In the present case, it is alleged that the Police Board supplied its members with tasers for purposes of non‑lethal intervention. That alleged act is not a "legislative function." The decision to supply its police officers with tasers was a decision taken by the Police Board pursuant to its statutory mandate to supply its members with the necessary equipment to carry out its duties. At most, the acts alleged to have been done by the Police Board in this case are acts done in furtherance of its obligations under the legislation. [55] More generally, I do not accept the argument of the Police Board that its functions are purely legislative in nature or that it acts only through the passage of bylaws. There is simply nothing in the Police Act to support that argument. Even when fulfilling its policy and rule-making functions, the Police Board is not analogous to a municipality, which has obvious legislative functions. Conclusion [56] In summary, it is

not "plain and obvious" that the plaintiffs' action against the Police Board cannot succeed. Accordingly, the application of the Police Board to strike the plaintiffs' action against the Police Board is dismissed. (SUBMISSIONS RE COSTS) [57] THE COURT: The Police Board sought special costs in this application, but if it had been successful I would not have awarded special costs. This is not a case that would warrant an award of special costs to the successful party. [58] However, the plaintiffs are entitled to their costs in any event of the cause. "C. Wedge, J." The Honourable Madam Justice C. Wedge