W.A.M. v. British Columbia (Attorney General)

2026 BCSC 189 W.A.M. v. British Columbia (Attorney General) IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: W.A.M. v. British Columbia (Attorney General), 2026 BCSC 189 Date: 20260205 Docket: S231401 Registry: Vancouver Between: W.A.M. Plaintiff And His Majesty the King in Right of the Province of British Columbia as represented by the Attorney General of British Columbia Defendant Before: The Honourable Justice E. McDonald Reasons for Judgment Counsel for the Plaintiff: K.N. Ramji Counsel for the Defendant: S. King M. Fingas Place and Date of Hearing: Vancouver, B.C. July 11, 2025 Place and Date of Judgment: Vancouver, B.C. February 5, 2026 Table of Contents Overview.. 3 Background.. 3 Is There a Genuine Issue for Trial?. 4 Should the Claim for Breach of a Duty of Care be Struck?. 8 The Facts Pled. 9 Analysis of Whether the Pleading Discloses a Reasonable Claim.. 10 Should the Plaintiff be Granted Leave to Further Amend the Claim?. 13 Disposition.. 15 Overview [1] The plaintiff claims that in approximately 1972, at a time when he was 16 or 17 years old, he was sexually assaulted by two corrections officers. The plaintiff seeks damages for the alleged sexual assaults. The sexual assaults had life-altering, negative, effects on the plaintiff and in early 2023, he decided to seek accountability by commencing a claim. [2] The plaintiff pleads that he was re-traumatized by the defendant forcing him to submit to an examination for discovery. The plaintiff also alleges that the defendant's late reliance on a Crown immunity defence left him in a deep state of depression with suicidal thoughts and he seeks damages for the further harm caused to him during the litigation. [3] The defendant applies for summary judgment dismissing the claim. However, the plaintiff submits that there is a genuine issue for trial despite the defendant's Crown immunity defence and his claim concerning re-traumatization during the litigation is not doomed to failure. [4] The issues are whether: (a) the Crown immunity defence means there is no genuine issue for trial, and (b) respecting the claim that the defendant breached a novel duty of care it owed to apply a "trauma-informed response", that aspect of the pleading should be struck out for failing to disclose a reasonable cause of action. [5] For the following reasons, I have determined that the claim should be dismissed. Background [6] On February 17, 2023, the plaintiff filed a notice of civil claim concerning allegations that when he was incarcerated in Oakalla Jail in 1972, and when he was 16 or 17 years old, he was sexually assaulted by two prison guards. In the claim, the plaintiff pleads and relies on, among other things, the Crown Proceeding Act, R.S.B.C. 1996, c. 89 [CPA]. [7] The defendant filed a response to the claim on May 29, 2023, which among other things, relying on the CPA. [8] On June 7, 2024, the defendant conducted an examination for discovery of the plaintiff. [9] Following the July 4, 2024, examination for discovery of the plaintiff, the defendant sought the plaintiff's consent to amend its response to particularize the Crown immunity defence. However, the plaintiff refused to consent to the proposed amendment, and he opposed the defendant's subsequent application to the court for leave to amend the response. [10] On September 4, 2024, the defendant obtained leave to file an amended response to the claim. On October 3, 2024, the defendant filed its amended response. [11] On January 30, 2025, the plaintiff filed an amended notice of civil claim. The amended claim includes a novel claim that by conducting an examination for discovery and then seeking to amend its response to rely on the Crown immunity defence, the defendant breached a duty of care that it owed to the plaintiff to follow a "trauma-informed response". In other words, the plaintiff alleges he was harmed by being subjected to an examination for discovery when that harm could have been avoided had Crown immunity been asserted earlier or had the defendant not conducted an examination. Is There a Genuine Issue for Trial? [12] Under Rule 9-6 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules], if a court is satisfied that there is no genuine issue for trial with respect to a claim, the court may pronounce judgment and dismiss a claim. [13] The plaintiff confirmed in his discovery that the alleged sexual assaults took place in or about 1972. That timing is significant because the tortious acts are alleged to have occurred prior to the CPA coming into force on August 1, 1974. [14] After confirming in the plaintiff's discovery that the alleged tortious conduct occurred in or about 1972, the defendant amended its response by adding paragraphs to the Legal Basis in Part 3 setting out that there is no Crown liability prior to August 1, 1974. The paragraphs that were added to the amended response specifically state: 10. The Defendant is immune from private law lability for events that occurred prior to August 1, 1974. The Defendant held Crown immunity at common law until, in 1974, the Crown Proceedings [sic] Act came into force and provided that the Defendant would now be subject to all the liabilities to which it would be liable if it were a person. 11. In Arishenkoff v. British Columbia 2005 BCCA 481 ("Arishenkoff"), a five-justice division of the Court of Appeal held that the Crown Proceedings [sic] Act is not retrospective and the Defendant "cannot be held liable for a tort alleged to have been committed by a servant or agent of the Crown before the Crown Proceedings [sic] Act came into force on 1 August, 1974." Leave to appeal this ruling was denied by the Supreme Court of Canada. 12. Four years after Arishenkoff, the Court of Appeal held in Richard v. British Columbia 2009 BCCA 185 ("Richard"), that the principle of Crown immunity applies equally to equitable claims, and that the Defendant is immune from all private law liability for events that occurred before August 1, 1974. Leave to appeal this ruling was denied by the Supreme Court of Canada. 13. The alleged tortious acts as pleaded occurred in or about 1972, prior to the Crown Proceedings [sic] Act coming into force on August 1, 1974. The decisions of the Court of Appeal in Arishenkoff and Richard are dispositive of the claims against the Defendant and liability against the Defendant cannot be established in this matter. [15] The defendant submits the claim should be dismissed because it has immunity for private law claims that originated prior to August 1, 1974, which is confirmed by Arishenkoff v. British Columbia, 2005 BCCA 481, leave denied 2005 S.C.C.A. 556 (S.C.C.) [Arishenkoff] and Richard v. British Columbia, 2009 BCCA 185, leave denied 2009 S.C.C.A. 274 (S.C.C.) [Richard]. [16] Arishenkoff concerned a claim by children removed from their Doukhobor parents' care in the 1950s pursuant to the Protection of Children Act. Their claim against the Province of BC pleaded breach of fiduciary duty, breach of trust and negligence based on allegations that the children were mistreated while in care. The impugned acts all occurred prior to the enactment of the CPA. [17] The claim in Arishenkoff was dismissed based on Crown immunity for the alleged tortious acts. In Arishenkoff, paras. 47-49, our court of appeal noted that the CPA changed the common law by providing that the Province will be subject to all liabilities as if it was a person. However, that did not apply retroactively to empower a person to make a claim for an injury that occurred before August 1, 1974. [18] Richard concerned a class action against the Province by former residents of Woodlands School for tortious conduct that included, among other things, sexual assault, negligence and breach of fiduciary duty. On an application to amend the certification order to limit the class period to begin August 1, 1974, the Court of Appeal concluded that due to Arishenkoff, the class period could not extend any earlier than August 1, 1974, and the class definition had to exclude claims predating August 1, 1974. [19] The defendant submits that due to the enactment of the CPA and the authorities in Arishenkoff and Richard, it is well established that the Province is immune from private law liability for events predating August 1, 1974. The defendant submits that these authorities recognizing the Crown's immunity for events that, in the present case, are alleged to have taken place in 1972, make it clear that the claim should be dismissed. [20] In his written submissions, the plaintiff's counsel explains that rather than challenge the CPA, the plaintiff is "challenging the limits on the common law Crown Immunity the Province enjoyed prior to the enactment of the CPA". Furthermore, the plaintiff submits that there is a triable issue because Crown immunity is not absolute since it is subject to the rule of law. [21] The plaintiff submits that Canada (Attorney General) v. Power, 2024 SCC 26 [Power], makes it clear that Arishenkoff and Richard are no longer good law because they do not consider the foundational constitutional principle of the rule of law. [22] In Power, the plaintiff was a person with a criminal record who later enrolled in school and obtained certification as an X-ray technician. When the plaintiff's criminal record was discovered by his employer, the plaintiff was terminated. The plaintiff then applied for a suspension of his criminal record but due to the transitional provisions in two federal statutes, namely, the Limiting Pardons for Serious Crimes Act, and the Safe Streets and Communities Act, the provisions resulted in the plaintiff being permanently ineligible for a pardon. [23] In Power, the plaintiff brought an action alleging that the statutory transitional provisions were unconstitutional. The Attorney General of Canada conceded that the transitional provisions were unconstitutional. [24] At paras. 116-117 of Power, the court states that immunity for the exercise of legislative power remains limited, there is no absolute immunity for the enactment of legislation later found to be clearly unconstitutional, and Charter damages may be awarded for enacting invalid legislation. [25] In the present proceeding, the plaintiff relies on the statement in Power, at para. 54, that the rule of law is a fundamental postulate to our constitutional structure that protects individuals from arbitrary state action. However, the analysis of the rule of law in Power arises in a context where the Charter applies and there is no discussion of common law principles and conduct arising long before the enactment of the Charter. [26] I agree with the defendant that the ratio in Power does not mean that Arishenkoff and Richard are no longer good law. In the present case, the conduct at issue occurred many years prior to the enactment of the Charter, which is different from the factual scenario in Power. Further, as already mentioned, the plaintiff here does not allege that the CPA is unconstitutional. [27] I conclude that the authorities in Arishenkoff and Richard are binding. Those cases confirm that for tortious acts predating August 1, 1974, the Province is immune from private law liability. [28] The plaintiff's evidence is that the wrongful events alleged in his claim occurred when he was 16 or 17 years old, in or about 1972. Given that the events clearly predate August 1, 1974, and the CPA does not apply retroactively, I find that the defendant's Crown immunity defence means there is no genuine issue for trial and that it is appropriate to grant judgment dismissing the claim. [29] The defendant also seeks to strike the plaintiff's claim that the defendant owes a duty of care to apply a "trauma-informed process" to the defence of the claim. I will now address the request to strike that aspect of the claim. Should the Claim for Breach of a Duty of Care be Struck? [30] The defendant seeks to strike out the claim pursuant to Rule 9-5 respecting an alleged breach of a duty of care to apply a "trauma-informed process". [31] Assuming the facts pled in a claim to be true, and noting that no evidence may be considered, all or part of a claim may be struck out under Rule 9-5(1)(a) if it is plain and obvious that the claim discloses no reasonable cause of action, or it lacks a reasonable prospect of success: R. v. Imperial Tabacco Canada Ltd., 2011 SCC 42 at para. 17. [32] Under Rule 9-5(b), all or part of a pleading may be struck out as unnecessary or vexatious. In Willow v. Chong, 2013 BCSC 1083 at para. 20, Justice Fisher described the relevant considerations to deciding whether to strike a pleading under subrule (b) as follows: Under Rule 9-5(1)(b), a pleading is unnecessary or vexatious if it does not go to establishing the plaintiff's cause of action, if it does not advance any claim known in law, where it is obvious that an action cannot succeed, or where it would serve no useful purpose and would be a waste of the court's time and public resources: Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, 1999 CanLII 5860 (BC SC), [1999] BCJ No. 2160 (SC); Skender v. Farley, 2007 BCCA 629. [33] Under Rule 9-5(1)(d), a pleading may be struck where the court finds that it is otherwise an abuse of process. [34] Where a claim is novel, a generous approach must be taken and a court should "err on the side of permitting a novel but arguable claim to proceed to trial": Imperial Tobacco, para. 21. Put another way, unless the applicant shows that it has no reasonable likelihood of success, the novel claim should be allowed to proceed for a full contextual analysis at trial: Nevsun Resources Ltd. v. Araya, 2020 SCC 5 at paras. 67 and 69. The Facts Pled [35] The pleaded material facts are set out in Part 1: Statement of Facts, of the claim. Bald assertions or conclusions of law are not a pleading of material facts: Kindylides v. John Does, 2020 BCCA 330 at para. 34 [Kindylides], citing Owimar v. Stewart, 2019 BCSC 1198 at paras. 19-20. [36] In paragraph 7 of Part 1 of the claim, the plaintiff pleads that as a result of the sexual assaults, the plaintiff is traumatized and the defendant was under a "duty of care to the Plaintiff to ensure through the litigation it would not cause the Plaintiff unnecessary psychological trauma". [37] In paragraph 8 of Part 1 of the claim, the plaintiff pleads: 8. On June 7, 2024 the Province carried out an Examination for Discovery of the Plaintiff, the focus of which was on the Sexual Assaults. This was a traumatic event for the Plaintiff as he had to relive and disclose the details of the Sexual Assaults but was willing to do so because there was the real possibility that his claim would be resolved subsequent to his Examination for Discovery. [38] The plaintiff pleads in paragraph 10 of Part 1 of the claim, that because of the defendant pleading the Crown immunity defence in its amended response, the examination of the plaintiff was "wholly unnecessary" and "in breach of the Province's duty of care to carrying out a Trauma Informed Process." [39] In my view, the need to assume the pleaded facts to be true, does not require me to accept that such a duty of care exists or that the conducting of a discovery was wholly unnecessary. These are bald conclusory assertions of the type that the court has recognized as not being pleadings of material fact: Kindylides at para. 33. [40] The plaintiff also pleads as material facts that because of the defendant's late filing of the Crown immunity defence, the plaintiff sustained serious indivisible psychological injuries. Analysis of Whether the Pleading Discloses a Reasonable Claim [41] The plaintiff submits that the defendant's Rule 9-5 application is an attempt to shield the Province from "further liability for unnecessarily retraumatizing the vulnerable Plaintiff, contrary to what is required by TIR (Trauma Informed Response)." The plaintiff characterizes this as the second wrong that the defendant has inflicted on the plaintiff. [42] The defendant submits that the aspect of the claim alleging the breach of a duty of care respecting the Province's "late reliance" on the Crown immunity defence ought to be struck out under Rule 9-5(1)(a), (b) and (d). [43] The claim that the defendant breached a duty of care by conducting a discovery to support a "late reliance" on the Crown immunity defence must reckon with the fact that the defendant always relied on the CPA as a legal basis for its denial of liability. The defendant's initial response to the claim clearly refers to the CPA as a legal basis for the response. [44] Promptly after the discovery of the plaintiff, the defendant sought the plaintiff's consent to amend the response. When consent to amend the response was denied, the defendant promptly sought leave from the court to particularize the legal grounds for its immunity defence in an amended response. Leave was granted and the defendant filed an amended response particularizing its Crown immunity defence under the CPA, as well as the authorities in Arishenkoff and Richard. [45] The defendant submits that it is plain and obvious that the claim for a breach of duty of care arising from late reliance on an immunity defence discloses no cause of action for breach of a duty of care: Cooper v. Hobart, 2001 SCC 79. [46] As there is no recognized cause of action or category of duty of care requiring the Province to proceed on a "Trauma Informed Process" while it defends itself, there is no dispute that the cause of action alleged by the plaintiff is novel. [47] Therefore, I must consider whether the defendant's alleged conduct discloses a reasonably foreseeable risk of harm and proximity which is potentially capable of establishing a prima facie duty of care. As mentioned, the impugned conduct is carrying out an examination for discovery, which conduct the plaintiff submits is contrary to a trauma-informed response. The plaintiff submits that the defendant has unnecessarily re-traumatized the plaintiff despite broad recognition that this should be avoided. [48] Respecting the legitimate concern about re-traumatizing a party who alleges sexual abuse, there is authority addressing circumstances where the court has exercised its discretion to accommodate vulnerable witnesses for an examination for discovery. [49] For example, in A.B. v. Henry, 2021 BCSC 2562 [A.B.], Justice Skolrood (as he then was), considered applications by a group of plaintiffs who alleged they were sexually assaulted by Mr. Henry, including their application to bar Mr. Henry from attending their examinations for discovery. Justice Skolrood discussed the discretion to exclude a party from attending an examination for discovery and authorities from other provinces ordering exclusion where a party might be faced with the prospect of being in the same room as the alleged attacker: A.B., para. 23, citing Elzen v. Kelly, 2016 ONSC 4903 at para. 6. [50] Ultimately, Skolrood J. ordered witness accommodations by excluding Mr. Henry from personally attending the plaintiffs' examinations. Therefore, A.B. demonstrates that a plaintiff may seek appropriate accommodations to prevent re-traumatization. However, Skolrood J. made clear that there is no general rule of application respecting examinations for discovery in all cases of civil sexual assault: A.B. para. 29 [51] I also note that claims alleging that counsel owes a duty of care to an opposing party in litigation have been struck out pursuant to Rule 9-5(1)(a), as failing to disclose a cause of action: Portnov v. Alexander Holburn & Lang LLP, 2025 BCSC 388 [Portnov] at paras. 36 and 39, ZF Farm Ltd. v. DLA Piper (Canada) LLP, 2024 BCSC 517 [ZF Farm] at para. 31. [52] It seems self-evident that if counsel do not owe any duty of care to an opposing party in litigation, then the party represented by that counsel would also not owe a duty of care to a plaintiff. As Justice MacNaughton (as she then was) states in ZF Farm, at para. 31: " there is no general obligation to litigate in good faith beyond adherence to the Rules, legal ethics and the common law of practice and procedure." [53] In Stanford v. CPA Professional Liability Plan Inc., 2023 BCSC 2158, Justice Saunders determined that the plaintiff's allegation that the defendants had not litigated in good faith was not a reasonable claim within the meaning of Rule 9-5(1) because: [27] There is no generalized duty to litigate in good faith. Litigation must be conducted within the parameters of the Supreme Court Civil Rules, the canons of legal ethics, and the common law or practice and procedure. Nothing more. The plaintiff's claim of feeling bullied by the defendants' litigation stance does not give rise to a claim for damages. [54] In my view, when the impugned conduct of conducting a discovery and amending a pleading is considered the factual context of the claim, it is plain and obvious that conduct fails to disclose a reasonably foreseeable risk of harm to the plaintiff. That is because the plaintiff commenced the claim and thereby voluntarily engaged in the inherently adversarial process that litigation entails. [55] I do not find a reasonably foreseeable risk of harm to the plaintiff arising from the defendant conducting its defence, for example, by ascertaining facts during an examination for discovery. If a reasonably foreseeable risk of harm existed in these circumstances, it would effectively prevent defendants from mounting their defence by utilizing standard pre-trial steps available to parties under the Rules. [56] I find that conducting a defence within the parameters of the Rules cannot give rise to a reasonably foreseeable risk of harm and there is no reasonable cause of action. Therefore, pursuant to Rule 9-5(1)(a), the claim for breach of a duty of care discloses no reasonable claim and it is liable to be struck out. [57] I will next consider whether, instead of striking the claim, I should grant leave to further amend the claim. Should the Plaintiff be Granted Leave to Further Amend the Claim? [58] In the plaintiff's written submissions, the plaintiff submits that there is an argument that the defendant is liable to the plaintiff for the tort of intentional infliction of mental suffering. [59] Specifically, the plaintiff submits that by engaging in flagrant and outrageous conduct that would foreseeably harm the plaintiff, and because the plaintiff has suffered actual damage, a cause of action for intentional infliction of mental suffering can be made out. In the event the application under Rule 9-5(1) is successful, the plaintiff asks for leave to further amend the claim to plead this tort. [60] It is well established that on application under Rule 9-5, the court should consider whether a defective pleading could be corrected by a potential amendment. Leave to amend a claim will be granted unless, assuming the pleaded facts to be true, it is plain and obvious that the amendment discloses no reasonable cause of action: British Columbia (Director, Civil Forfeiture) v. Vo, 2012 BCSC 1476 at para. 24, rev'd in part, 2013 BCCA 279. [61] The factors to be considered in deciding whether to grant leave to amend an inadequate claim rather than striking it, includes those set out in Rule 1-3, along with the "apparent merit" of the claim that may be made out with the amendment: Kindylides at paras. 22-23 citing Jones v. Bank of Nova Scotia, 2018 BCCA 381 at para. 35. [62] Again, the plaintiff submits that the defendant has unnecessarily re-traumatized the plaintiff through the defendant's conduct in this litigation. For example, the plaintiff submits that he has been re-traumatized by the defendant forcing him to prepare for and attend an examination for discovery, relying on and pleading a Crown immunity defence, asking for a settlement proposal and then failing to respond to it, and threatening costs if the plaintiff did not discontinue the claim. [63] The problem with the request to further amend the claim to assert the tort of intentional infliction of mental suffering is that it effectively asserts the same material facts that are asserted in the present claim, i.e. that the defendant's litigation stance and conduct in mounting a defence, is actionable conduct per se. [64] Just as mounting a defence within the parameters of the Rules does not give rise to a reasonable claim for damages for breaching a duty of care to follow a trauma-informed process, that conduct also fails to ground a claim for intentional infliction of mental suffering. If that were not the case, any defendant mounting a defence would open themselves up to a potential tort claim. [65] I have already referred to authority finding that lawyers do not owe any duty of care to the opposing party in litigation. I was not taken to any authority stating that a defendant commits a fresh tort through the very act of defending themselves against a claim. [66] In my view, the remedy for in-litigation conduct that is alleged to be reprehensible and deserving of censure and rebuke, lies in a request for special costs pursuant to Rule14-1(1)(b). [67] Because it is plain and obvious that the proposed further amendment discloses no reasonable cause of action, the request for leave to further amend the claim is denied. Disposition [68] For the reasons explained, the claim is dismissed without leave to amend. "E. McDonald J."