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Date: Fri, 5 Oct 2007 13:08

From: Russell Brown

Subject: Police liability


John et al.,

It's difficult to predict whether police behaviour will in fact be changed. I consulted one of my criminal law colleagues yesterday about the decision, and he did not seem to think the answer was obvious one way or the other. He did feel that tort liability will be rarely imposed, given the majority's conclusion on the standard of care (on those facts).

My own view (for what it's worth) is that Canadians generally are no less likely to want to sue as a response to misused police power than what John describes as the UK resident attitude. Most of the misuses/abuses that make the airwaves here would fall under the tort of misfeasance in a public office, but there is a vocal victims' rights lobby here that does not hesitate to criticize "bungled" police investigations. I predict we will see more of the Hill kinds of negligence actions, and it will be interesting to see whether the trial courts are as deferential on the standard of care issue as the SCC was.

As for causation, I think the Court's comments (with which, if taken in isolation from everything else it has said about causation, I generally agree) go to the question of whether the Court has an "agenda" that it is advancing on causation or whether it is just saying things (in cases like Resurfice v. Hanke) without thinking through their significance and their relation to the Court's past statements on causation. (I explore both possibilities but more-or-less stay on the fence in a forthcoming paper on Resurfice v. Hanke). The case for the "agenda" is helped by lots of McLachlin J/CJ commentary over the years (including extra-judicial commentary like her speech at the Fleming conference). The other case, however, is boosted by commentary like McLachlin CJ's in Hill, which is (as David points out) impossible to reconcile with Resurfice v. Hanke. (I agree with Erika that causation was not an issue in Hill, but neither was it an issue in Resurfice, and certainly not after the SCC restored the trial judgment on the basis of the trial judge's findings of fact.)





Quoting David Cheifetz:

Expanding on the point of paras 59 and 61 of Hill v Hamilton-Wentworth, which I see as central to the majority's justification for their decision, even if they didn't put it that way -

I suggest the premise in those paragraphs flows from and is a continuation of the "enterprise liability" philosophy the Supreme Court of Canada began to expound at least in Bazley v Curry, [1999] 2 S.C.R. 534. Bazley and enterprise liability aren't mentioned in Hill, but that's a so what. It wasn't necessary given the content of paras 59 and 61. I point to the following paragraphs in Bazley - 31, 38, 53, 54 - which I suggest lead to the Hill decision. Inexorably? No. Probably? I think so.

Bazley v. Curry, [1999] 2 S.C.R. 534

31 However, effective compensation must also be fair, in the sense that it must seem just to place liability for the wrong on the employer. Vicarious liability is arguably fair in this sense. The employer puts in the community an enterprise which carries with it certain risks. When those risks materialize and cause injury to a member of the public despite the employer’s reasonable efforts, it is fair that the person or organization that creates the enterprise and hence the risk should bear the loss. This accords with the notion that it is right and just that the person who creates a risk bear the loss when the risk ripens into harm. While the fairness of this proposition is capable of standing alone, it is buttressed by the fact that the employer is often in the best position to spread the losses through mechanisms like insurance and higher prices, thus minimizing the dislocative effect of the tort within society. “Vicarious liability has the broader function of transferring to the enterprise itself the risks created by the activity performed by its agents” (London Drugs, per La Forest J., at p. 339).

38 Where the risk is closely associated with the wrong that occurred, it seems just that the entity that engages in the enterprise (and in many cases profits from it) should internalize the full cost of operation, including potential torts. See generally A. O. Sykes, “The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines” (1988), 101 Harv. L. Rev. 563. On the other hand, when the wrongful act lacks meaningful connection to the enterprise, liability ceases to flow: Poland v. John Parr and Sons, [1927] 1 K.B. 236 (C.A.) (noting that the question is often one of degree). As Prosser and Keeton sum up (Prosser and Keeton on the Law of Torts (5th ed. 1984), at pp. 500-501), when the harm is connected to the employment enterprise:

"The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large."

53 The third argument, essentially a variation on the first, is that vicarious liability will put many non-profit organizations out of business or make it difficult for them to carry on their good work. It is argued that unlike commercial organizations, non-profit organizations have few means of distributing any loss they are made to assume, since they cannot increase what they charge the public and cannot easily obtain insurance for liability arising from sexual abuse. While in this case, it may be that the loss can be distributed to the public (since the province pays the Foundation for caring for children like the respondent), many non-profit organizations may have no way to obtain contribution from other sources to cover judgments against them. In sum, attaching liability to charities like the Foundation will, in the long run, disadvantage society.

54 I cannot accept this contention. It is based on the idea that children like the respondent must bear the cost of the harm that has been done to them so that others in society may benefit from the good work of non-profit organizations. The suggestion that the victim must remain remediless for the greater good smacks of crass and unsubstantiated utilitarianism. Indeed, it is far from clear to me that the “net” good produced by non-profit institutions justifies the price placed on the individual victim, nor that this is a fair way for society to order its resources. If, in the final analysis, the choice is between which of two faultless parties should bear the loss - the party that created the risk that materialized in the wrongdoing or the victim of the wrongdoing - I do not hesitate in my answer. Neither alternative is attractive. But given that a choice must be made, it is fairer to place the loss on the party that introduced the risk and had the better opportunity to control it.

If I had to guess, I'd say that one or more of the majority drafts included something that referenced Bazley and the enterprise liability concept more explicitly than paras 59 and 61, perhaps even a paraphrase of para 54 and, particularly, the concluding sentence. It's rather obvious, no?

If I've spotted it, don't we have to assume the SCC did, too?



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