CANADIAN CASES on the LAW of TORTS Fourth Series/QuatriÈme SÉrie Recueil De Jurisprudence Canadienne En ResponsabilitÉ Civile VOLUME 28 (Cited 28 C.C.L.T

CANADIAN CASES ON THE LAW OF TORTS Fourth Series/Quatrième série Recueil de jurisprudence canadienne en responsabilité civile VOLUME 28 (Cited 28 C.C.L.T. (4th))

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[Indexed as: Tran v. Chung] Nip Y Tran, Plaintiff (Appellant) and Phu Man Chung, Majekodunmi Adega, also known as Majek Adega, Tu Hong Luong, Tradeworld Realty Inc., Bank of Montreal, and Cynthia Dacosta, also known as Cynthia DaCosta, also known as Cynthia Da Costa, and Kerryon Nugent, Defendants (Respondent) Ontario Court of Appeal Docket: CA C60661 2016 ONCA 378 J. Simmons, H.S. LaForme, Grant Huscroft JJ.A. Heard: December 9, 2015 Judgment: May 19, 2016 Torts –––– Conversion — What constituting –––– Plaintiff owned home which had mortgage registered against it in favour of defendant bank — Plaintiff’s tenant, C, helped plaintiff sell home to buyer, and plaintiff received $148,000 on closing — Plaintiff deposited closing funds into account at financial institution — Plaintiff alleged that she received advice regarding closing funds from C, as well as from A, who was her solicitor, and from N, who was agent for buyer — Plaintiff alleged that A, C, and N told her to obtain draft in amount of $90,190 payable to bank (“subject draft”) under pretence that amount was owing on home mortgage — In reality, mortgage had been paid out when home was sold — Subject draft was deposited by D, who was stranger to plaintiff, into D’s line of credit account with bank — Plaintiff commenced action against bank for tort of conversion — Plaintiff was not successful in bringing motion for summary judgment against bank, and bank successfully brought motion for summary judgment dismissing action against it — Plaintiff appealed — Appeal allowed — Motion judge’s order was set aside and replaced with order allowing plaintiff’s motion for summary judgment for conversion and denying bank’s 2 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

motion to dismiss claim — Bank recognized that plaintiff owed it nothing at relevant time — Furthermore, bank treated funds represented by bank draft as being property of D and not as bank’s property — Bank took instructions from D on how and where to pay funds, even though she was not payee of bank draft — On her instructions, they credited proceeds to D’s account and then permitted her to withdraw same amount in form of new bank draft, payable to A, and cash — Wrongful interference in conversion context did not involve any moral wrongdoing — Because plaintiff was entitled to immediate possession of draft from bank, wrongful interference consisted of paying proceeds to D without proper authorization. Cases considered by H.S. LaForme J.A.: Bank of Montreal v. Bloomer (1965), [1965] S.C.R. 696, 53 D.L.R. (2d) 232, 1965 CarswellBC 191 (S.C.C.) — considered Bank of Montreal v. i Trade Finance Inc. (2011), 2011 SCC 26, 2011 Carswell- Ont 3306, 2011 CarswellOnt 3307, 77 C.B.R. (5th) 231, 17 P.P.S.A.C. (3d) 250, 332 D.L.R. (4th) 193, (sub nom. i Trade Finance Inc. v. Webworx Inc.) 416 N.R. 166, (sub nom. i Trade Finance Inc. v. Webworx Inc.) 276 O.A.C. 141, (sub nom. i Trade Finance Inc. v. Bank of Montreal) [2011] 2 S.C.R. 360, 108 O.R. (3d) 80 (note) (S.C.C.) — considered Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce (1996), [1997] 2 W.W.R. 153, [1996] 3 S.C.R. 727, 140 D.L.R. (4th) 463, 27 B.C.L.R. (3d) 203, 203 N.R. 321, 82 B.C.A.C. 161, 133 W.A.C. 161, 1996 CarswellBC 2314, 1996 CarswellBC 2315, [1996] S.C.J. No. 111, EYB 1996-67134 (S.C.C.) — considered Jer v. Samji (2014), 2014 BCCA 116, 2014 CarswellBC 808, [2014] 7 W.W.R. 251, 53 C.P.C. (7th) 27, 353 B.C.A.C. 131, 603 W.A.C. 131, 60 B.C.L.R. (5th) 173 (B.C. C.A.) — considered Midland Bank Ltd. v. Reckitt (1932), [1933] A.C. 1, [1932] All E.R. Rep. 90 (U.K. H.L.) — considered Raza Kayani LLP v. Toronto-Dominion Bank (2013), 2013 ONSC 7967, 2013 CarswellOnt 18666, 9 C.C.L.T. (4th) 154 (Ont. S.C.J.) — considered Raza Kayani LLP v. Toronto-Dominion Bank (2014), 2014 ONCA 862, 2014 CarswellOnt 16810, 378 D.L.R. (4th) 729, 14 C.C.L.T. (4th) 175, 328 O.A.C. 229 (Ont. C.A.) — referred to Westboro Flooring & D´ecor Inc. v. Bank of Nova Scotia (2004), 2004 Carswell- Ont 2350, 241 D.L.R. (4th) 257, 187 O.A.C. 357, 71 O.R. (3d) 723, [2004] O.J. No. 2464 (Ont. C.A.) — referred to 373409 Alberta Ltd. (Receiver of) v. Bank of Montreal (2002), 2002 SCC 81, 2002 CarswellAlta 1573, 2002 CarswellAlta 1574, [2003] 2 W.W.R. 1, 29 B.L.R. (3d) 1, (sub nom. Bank of Montreal v. Ernst & Young Inc.) 220 D.L.R. (4th) 193, (sub nom. 373409 Alberta Ltd. v. Bank of Montreal) 296 N.R. 244, 8 Alta. L.R. (4th) 199, 317 A.R. 349, 284 W.A.C. 349, [2002] 4 Tran v. Chung H.S. LaForme J.A. 3

S.C.R. 312, [2003] R.R.A. 1, [2002] S.C.J. No. 82, REJB 2002-36137, [2002] A.C.S. No. 82, 2002 CSC 81 (S.C.C.) — followed Statutes considered: Bills of Exchange Act, R.S.C. 1985, c. B-4 Generally — referred to s. 55 — considered

APPEAL by plaintiff from decision reported at Tran v. Chung (2015), 2015 ONSC 3315, 2015 CarswellOnt 8555 (Ont. S.C.J.), in which bank successfully brought motion for summary judgment dismissing action against it.

James H. Chow, for Appellant Allyson Fox, for Respondent

H.S. LaForme J.A.: A. Introduction 1 The appellant, Nip Y Tran, claims she was fraudulently induced to provide a bank draft payable to the Bank of Montreal (“BMO”) by a group of alleged fraudsters. Unbeknownst to her, the alleged fraudsters gave the bank draft to a third party whom the appellant did not know. The third party then took the bank draft to BMO. Following the third party’s instructions, BMO accepted the bank draft and deposited it to her line of credit. The third party then instructed BMO to provide her with funds equal to the amount of the bank draft and gave those funds to one of the alleged fraudsters. 2 Did BMO commit the tort of conversion? The motion judge said no and dismissed the appellant’s claim on a motion for summary judgment. For the reasons that follow, I disagree and would allow the appeal and grant judgment to the appellant.

B. Background 3 Ms. Tran owned a house, which had a $225,750 mortgage registered against it in favour of BMO. In 2009, the mortgage went into default. 4 Ms. Tran was concerned about the bank repossessing her house and confided in one of the defendants, Phu Man Chung, who was a tenant at the property. Mr. Chung told Ms. Tran that he could sell the house for her quickly. Ms. Tran trusted him and left the matter in his hands. 5 Mr. Chung was friends with the defendant, Tu Hong Luong, who was a real estate agent with the defendant, Tradeworld Realty Inc. Mr. Luong 4 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

listed the property for sale although there was no listing agreement signed by Ms. Tran. Mr. Chung advised Mr. Luong that he owned the property. 6 Mr. Chung’s brother-in-law, Hui Ming Zhou, offered $420,000 to purchase the property. Ms. Tran signed an agreement of purchase and sale, prepared by Mr. Luong. 7 The defendant, Majek Adega, was Ms. Tran’s real estate lawyer. Af- ter the transaction closed on March 9, 2010, Ms. Tran was accompanied by Mr. Chung to Mr. Adega’s office where Mr. Adega provided her with a bank draft payable to her in the sum of $148,788.32 — the equity she had after the mortgage was discharged. 8 On the same day, Ms. Tran was escorted to a branch of the Royal Bank of Canada (“RBC”) where a bank account under her name had previously been opened under the instructions of, and with the assistance of, Mr. Chung. 9 At the RBC branch, Mr. Adega, Mr. Chung and Kerryon Nugent — a real estate agent who had acted for Mr. Zhou — were there to ensure that Ms. Tran’s bank draft in the sum of $148,788.32 was deposited into her bank account. She was then instructed by them to sign purchase orders for four RBC bank drafts payable as follows: $90,190 to BMO, $4,193.50 to Ms. Nugent, $40,000 to Mr. Chung, and $11,000 to Vicky Le. 10 Ms. Tran, who cannot read English and who completed only limited education in Vietnam, claims that she acted as instructed because she believed the drafts were necessary to complete the transaction for the sale of her property and to discharge her mortgage with BMO. However, BMO accepts that, on the date the bank draft was issued, Ms. Tran did not owe any money to BMO as her mortgage had already been discharged. Ms. Tran gave the $90,190 bank draft payable to BMO to Ms. Nugent who, in turn, gave the bank draft to Cynthia DaCosta, another defendant. Ms. Tran did not know Ms. DaCosta and did not know that the bank draft was given to her. Ms. DaCosta admits that she had no right to any money from Ms. Tran, and that Ms. Tran never gave her the draft and has never known her. 11 On March 10, 2010, Ms. DaCosta, accompanied by Ms. Nugent, vis- ited a BMO branch. BMO, following Ms. DaCosta’s instructions, deposited the $90,190 bank draft payable to BMO into Ms. DaCosta’s line of credit account with BMO. This bank draft had Ms. Tran’s name and address written on the front of it as the purchaser of the draft. Ms. DaCosta Tran v. Chung H.S. LaForme J.A. 5

then immediately withdrew the exact sum of the bank draft in two trans- actions: (i) a bank draft made payable to “Majek Adega” in the sum of $79,190; and (ii) cash in the sum of $11,000. She then gave both the cash and bank draft to Ms. Nugent, who in turn gave them to Mr. Adega. 12 Ms. Tran says the defendants told her that she would receive more than $100,000 from the sale in the days following the issuance of the draft. She has received nothing to date. 13 Ms. Tran commenced an action against the individual defendants for fraud and various other breaches. She also included BMO as a defendant, claiming that BMO was liable for conversion because it collected the $90,190 and made those funds available to Ms. DaCosta, who was not a person entitled to receive them. In the alternative, Ms. Tran claimed that BMO was unjustly enriched. 14 Ms. Tran subsequently brought a motion for summary judgment against BMO for $90,190, and BMO brought a competing motion for summary judgment for an order dismissing the action against it. The motion judge granted BMO’s motion for summary judgment and dismissed Ms. Tran’s claim against BMO.

C. The Motion Judge’s Decision 15 The motion judge relied on the test for conversion of a cheque as set out in 373409 Alberta Ltd. (Receiver of) v. Bank of Montreal, 2002 SCC 81, [2002] 4 S.C.R. 312 (S.C.C.) (“373409 Alberta Ltd.”), at para. 10: a bank will be liable for conversion where it makes payment on a cheque to someone other than the rightful holder and that payment is not authorized by the rightful holder. The tort is one of strict liability. 16 Ms. Tran’s theory of liability was described by the motion judge: BMO converted her $90,190 RBC bank draft, which was payable to BMO, on the direction of Ms. DaCosta, who was not authorized by Ms. Tran to possess the draft. Accordingly, Ms. Tran asserts that BMO committed the tort of conversion and is liable for the $90,190. 17 The motion judge concluded that there were three questions to be answered to decide whether BMO was liable for conversion: (1) who was the rightful holder of the bank draft; (2) was the payment made to someone other than the rightful holder of the draft; and (3) was the payment not authorized by the rightful holder? The motion judge held that BMO was not liable for conversion of the bank draft. 6 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

18 I will say more about the motion judge’s reasons for her decision in my discussion below.

D. Submissions 19 The sole issue raised by the parties on appeal is whether the motion judge erred in finding that BMO is not liable for conversion. Neverthe- less, there are several other issues that arise out of my conclusion on conversion, which I comment on briefly near the end of these reasons. 20 According to Ms. Tran, this is a classic case of conversion. She says that a bank converts an instrument by dealing with it under the direction of someone without authorization and making the proceeds available to someone other than the person rightfully entitled to possession. She alleges that, in this case, BMO converted the bank draft when it collected the proceeds of the bank draft and made them available to Ms. DaCosta and Mr. Adega, who had no entitlement to those funds. 21 BMO, on the other hand, submits that: 1. Ms. Tran cannot bring an action in conversion on the bank draft because she was not the drawer, payee, or endorsee of the bank draft. 2. BMO cannot convert funds payable to BMO. The funds were guaranteed funds from RBC. 3. BMO did not wrongfully interfere with the draft since Ms. Tran had authorized the draft be made payable to BMO. 4. Ms. Tran cannot make out a claim for conversion because she was not in actual possession of the draft, nor was she entitled to immediate possession of it. 5. Ms. Tran voluntarily parted with the bank draft when she gave it to Mr. Adega, Ms. Nugent and Ms. Chung, which conveyed to them the right to use the bank draft. That right was subject to Ms. Tran revoking her consent, which she did not do. 6. In the alternative, BMO has a defence as a “holder in due course” under the Bills of Exchange Act, R.S.C. 1985, c. B-4. 22 I will deal with these issues after first reviewing the law on conversion. Tran v. Chung H.S. LaForme J.A. 7

E. Analysis (1) The Tort of Conversion 23 The tort of conversion involves “a wrongful interference with the goods of another, such as taking, using or destroying these goods in a manner inconsistent with the owner’s right of possession”: Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727 (S.C.C.), at para. 31. The tort is of one of strict liability and so it is no defence that the wrongful act was committed without intent: Boma, at para. 31. Even if the claimant is negligent with respect to its chattel, the wrongdoer will not be able to contest liability on the basis of the claimant’s contributory negligence: Boma, at paras. 31-35. In other words, the tort of conversion is not concerned with the moral concept of fault: Westboro Flooring & D´ecor Inc. v. Bank of Nova Scotia (2004), 71 O.R. (3d) 723 (Ont. C.A.), at para. 14. 24 In Boma, at para. 36, Iacobucci J. referred to the seminal discussion of the conversion of cheques from Crawford and Falconbridge’s treatise, Banking and Bills of Exchange, 8th ed. (Toronto: Canada Law Book Inc., 1986): Conversion is the remedy of the lawful possessor of chattels to have their value paid to him by a wrongful dispossessor. It is normally applied to goods and there might appear to be some difficulty in holding that a bank that had paid part of what it owes to a customer to some other person not entitled to receive it is guilty of a conversion of the customer’s chattel. But any such apparent difficulty has been surmounted by treating the conversion as being of the instrument itself, that is, of the piece of paper in respect of which the payment is made. Similarly, a bank that collects a sum of money under an instrument for a person not entitled to it is treated as having converted the instrument. It has been repeatedly held that a bank converts an instrument by dealing with it under the direction of one not authorized, either by collecting it or, semble (although this has not yet actually been decided) by paying it and in either case, making the proceeds available to someone other than the person rightfully entitled to possession. [Emphasis added.] 25 Borrowing from this passage, Iacobucci J. affirmed, at para. 83, that “[a] bank converts an instrument, including a cheque, by dealing with it under the direction of one not authorized, by collecting it and making the proceeds available to someone other than the person rightfully entitled to possession.” 8 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

26 The Supreme Court subsequently affirmed the test from Boma in 373409 Alberta Ltd., in the context of a cheque. At para. 10, Major J. noted that two factors must be present for a bank to be liable for conversion of a cheque: [A] lending institution’s liability in conversion is predicated upon finding both that payment upon the cheque was made to someone other than the rightful holder of the cheque, and that such payment was not authorized by the rightful holder. If either of these criteria is not satisfied, there is no tort. [Emphasis in original.] 27 Major J. noted, at para. 9, that “dealing with another’s chattel in a manner authorized by the rightful owner is consistent with the owner’s right of possession” and therefore does not qualify as wrongful interference.

(2) Application of Legal Principles (a) Can Ms. Tran bring an action in conversion if she is not the drawer, payee or endorsee of the bank draft? 28 BMO accepts that it is possible to sue in conversion on a bank draft. However, it relies on a comment in Boma to argue that Ms. Tran is unable to bring such an action because she is not the drawer, payee or endorsee of the bank draft. At para. 37 of Boma, Iacobucci J. stated that “[t]he drawer, the payee or the endorsee can bring an action for conversion of a cheque.” 29 This argument is predicated on differences between a cheque and bank draft.

(i) Cheques vs. Bank Drafts 30 A cheque is used to instruct a bank to pay funds from the payor’s account. In the case of a cheque, the following terminology is used: • The “drawer” is the payor, who directs, through the cheque, that funds be drawn from his or her account. • The “drawee” is the bank upon which the drawer writes the cheque (e.g., the drawer’s bank). • The “payee” of a cheque is the person to whom the draft is made payable. • An “endorsee” is a person to whom the cheque is negotiated by the original payee (or a previous endorsee). For instance, if a Tran v. Chung H.S. LaForme J.A. 9

cheque is made payable to X, X may endorse it to Y. Y is now the endorsee and the person who is entitled to demand payment on the instrument. 31 Similar to cheques, bank drafts are often used to effect payment from one party to another. However, bank drafts fall within a category of instruments referred to as “remittance instruments”, which also includes certified cheques and money orders. 32 Unlike a cheque, a bank draft has a purchaser, who buys the instrument from an issuing bank. The purchaser instructs the issuing bank to fill out the draft with a payee and the amount he or she wishes to pay. The payee may be the purchaser or a third party. The bank then collects the payment amount from the purchaser (e.g., as a direct debit from the purchaser’s bank account). The purchased funds are placed in the issuing bank’s reserve account until the payee negotiates the draft. After negotia- tion by the payee, the issuing bank will transfer the funds to the payee’s account: M.H. Ogilvie, Bank and Customer Law in Canada, 2d ed. (To- ronto: Irwin Law Inc., 2013), at pp. 426-428. 33 Since the issuing bank holds the money in its own reserve account and then transfers it to the payee’s bank, the issuing bank is considered both the “drawer” and the “drawee” of the bank draft (unlike in the cheque context, where the drawer is the customer who asks, through the cheque, that money be transferred from its account to the payee). As with cheques, the “payee” is the person to whom the instrument is payable. While the purchaser may be named in the bank draft (e.g., on the face of the draft), it is not a party to the instrument. 34 One reason for using a bank draft to make a payment instead of a cheque is that a bank draft is said to be “guaranteed” funds. Because the bank holds the payment amount in its own account, there is no risk of the draft “bouncing”, as compared to a regular cheque where the drawer/payor could theoretically give a cheque to the payee and withdraw all of the funds in its bank account before the cheque clears or cancel the cheque.

(ii) Conversion of a Bank Draft 35 There is very little case law dealing with conversion of bank drafts. However, what little there is supports the view that a claim for conversion is available where it involves a bank draft. 36 In Bank of Montreal v. Bloomer, [1965] S.C.R. 696 (S.C.C.), the purchaser of a bank draft sued the bank for conversion. The Supreme Court 10 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

overturned the lower courts’ finding that BMO was liable for converting a bank draft on the basis that conversion was not established. It did not suggest that a purchaser of a bank draft could not establish conversion in a proper case. Nor did it suggest that the principles that apply to converting a bank draft are different than the principles that apply, for example, to converting a cheque. 37 More recently in Raza Kayani LLP v. Toronto-Dominion Bank, 2013 ONSC 7967, 9 C.C.L.T. (4th) 154 (Ont. S.C.J.), the trial judge held that the defendant bank was liable for converting both a certified cheque and a bank draft. She did not specifically address whether the conversion analysis should be different in relation to the bank draft. Instead, at paras. 58 and 60, she appears to have equated the “drawer” of a cheque with the purchaser of a draft and assumed that the same principles apply in respect of both instruments: Zwicker and Kayani were the drawers who authorized the writing of the cheque or draft on their Accounts. The Bank was the drawee, which was directed to pay a sum of money on an instrument, in this case a cheque or a draft...... In the conversion of cheques or bank drafts negotiated at a collecting bank and deposited to the credit of the collecting bank’s customer, who was not entitled to the proceeds of the cheque or draft, the collecting bank is prima facie liable to the maker of the cheque or draft. [Emphasis added.] 38 This court reversed the trial judge’s decision on appeal on the basis that the bank had a valid defence available to it under the Raza Kayani LLP v. Toronto-Dominion Bank, 2014 ONCA 862, 378 D.L.R. (4th) 729 (Ont. C.A.). This court did not indicate any problems with the trial judge’s conclusion that the bank was prima facie liable for conversion, indicating that a bank draft may be the subject of a conversion action.

(iii) Ms. Tran can bring a claim for conversion 39 As noted, BMO argues that Ms. Tran cannot bring an action in conversion as the purchaser of a bank draft. 40 I reject BMO’s argument, which relies on para. 37 of Boma. While para. 37 says that a “drawer, payee or endorsee” can sue for conversion, the court in that case was expressly dealing with conversion of a cheque. The Supreme Court did not hold that only those three parties could maintain a claim in conversion for any kind of instrument. Tran v. Chung H.S. LaForme J.A. 11

41 In conclusion, I reject BMO’s argument that Ms. Tran cannot bring a conversion action because she is not the drawer, payee or endorsee of the bank draft. As I will explain, in the circumstances of this case, Ms. Tran has met the test for conversion.

(b) Did BMO convert funds payable to BMO in the circumstances of this case? 42 BMO submits that, even if a purchaser of a draft can bring an action in conversion, the tort cannot be made out on the facts of this case. 43 Its primary argument is that the bank cannot convert a draft payable to itself and presented to it by its own customer. Relying on Boma and 373409 Alberta Ltd., it says there can be no conversion if the instrument is delivered to its intended payee and that BMO was the intended payee in this case. It also relies on the fact that a bank draft is guaranteed funds to assert that the proceeds belonged to BMO. I reject these arguments. 44 Returning to the test from para. 83 of Boma, the question is whether BMO converted the bank draft “by dealing with it under the direction of one not authorized, by collecting it and making the proceeds available to someone other than the person rightfully entitled to possession.” Thus, the motion judge was required to consider (1) whether BMO dealt with the bank draft under the direction of one not authorized, and (2) whether the proceeds were made available to someone other than the person rightfully entitled to possession. 45 In grappling with those questions, the motion judge asked herself the following three questions: (1) who was the “rightful holder” of the bank draft? (2) was the payment made to someone other than the rightful holder of the draft? and (3) was the payment not authorized by the rightful holder? (para. 22). 46 The heart of her analysis, found at paras. 20-21 and 25-27, is as follows: The authorities relied upon by the parties with respect to conversion deal with cheques payable to one person but deposited into the account of another person without the authority of the drawer of the cheque. The situation here is quite different. Firstly, it involves a bank draft not a cheque. The draft was payable to BMO. The plaintiff was not an endorsee. The draft was deposited into a BMO customer’s line of credit account. The line of credit was a debt secured against the customer’s property. Accordingly, the customer was indebted to the bank. 12 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

In 373409 Alberta Limited, the court stated that, a lending institution’s liability in conversion is predicated upon finding both that the payment upon the cheque was made to someone other than the rightful holder of the cheque, and that such payment was not authorized by the rightful holder. If either of these criteria is not satisfied, there is no tort. (see para. 10) ..... In this matter, the plaintiff states that she gave the drafts to the defendants Adega, Chung and Nugent. Accordingly, they were the rightful holders; however, the draft was not payable to them. Nugent then gave the draft to DaCosta. According to the plaintiff, Nugent did not did use the cheque for the purpose she intended. Even though the plaintiff did not know the reason for it, by virtue of the fact that she requested and obtained a draft payable to BMO, she intended that the $90,190 be payable to BMO. It was deposited into a line of credit account in which the holder of the account was indebted to BMO. The deposit was a payment to the bank on account of a secured debt. The bank was entitled to accept a draft payable [to] itself and to deposit it to an account in which the account holder was indebted to the bank. The fact that the plaintiff was fraudulently induced to obtain the draft may give her a cause of action against Adega, Chung and Nugent as well as the person who ultimately received the funds; however, the bank did not commit the tort of conversion. 47 In her analysis, she referred to 373409 Alberta Ltd. for the proposition that “[a]n owner’s right of possession includes the right to authorize others to deal with his or her chattel in any manner specified.” She also made reference to Jer v. Samji, 2014 BCCA 116, 60 B.C.L.R. (5th) 173 (B.C. C.A.), which Ms. Tran relied on in support of her argument that she was the rightful holder of the draft because her mortgage with BMO was already paid out. 48 In my view, the motion judge’s analysis overlooks several important points. 49 First, while Ms. Tran authorized Mr. Adega, Mr. Chung, and Ms. Nu- gent to give the bank draft to BMO, it is fair to infer from the affidavit evidence that they were not authorized to do whatever they wanted with it. Rather, they were authorized to deliver the bank draft on Ms. Tran’s behalf. 50 Second, I fail to see how Ms. DaCosta became rightfully entitled to possess the bank draft. Ms. Tran had never heard of Ms. DaCosta and so Tran v. Chung H.S. LaForme J.A. 13

it cannot be said that Ms. Tran authorized her to deal with the draft. Nor did Ms. Tran authorize Mr. Adega, Mr. Chung and Ms. Nugent to give the draft to anyone other than BMO. 51 Third, as the collecting bank, BMO acted on the instructions of Ms. DaCosta to deposit the proceeds of the bank draft into her account to reduce her indebtedness to BMO. Without Ms. DaCosta’s instructions, there was no reason to deposit the proceeds of the draft into her account, as she was neither the payee nor an endorsee. In acting on her instructions, BMO acted on the instructions of one not authorized to deal with the proceeds. 52 Fourth, in the circumstances, it is reasonable to infer that Ms. Tran never intended to either gift money to BMO or to pay off Ms. DaCosta’s line of credit. 53 BMO, however, points to the fact that it was entitled to the bank draft as payee of the draft and that, as payee, it was entitled to the “guaranteed funds” from RBC. 54 BMO provided no authority in support of the bald proposition that a bank cannot convert a bank draft made payable to itself where presented by its own customer to pay down an existing third-party debt. 55 BMO also submits that a plaintiff must prove that she was either in actual possession or entitled to immediate possession of the chattel in order to sue for conversion. It notes that, once Ms. Tran handed over the draft to the alleged fraudsters, she no longer had actual possession. Nor, in BMO’s submission, was she entitled to immediate possession of the proceeds, as she had authorized that the bank draft be payable to BMO. 56 It is clear, in my view, that in relation to Mr. Adega, Ms. Nugent and Mr. Chung, Ms. Tran was entitled to demand immediate possession of the bank draft. They were not the payees or endorsees of the draft and it was clear that the draft was meant to be delivered to BMO. Effectively, they were merely messengers acting on Ms. Tran’s behalf. 57 Ms. Tran was also entitled to immediate possession as against Ms. DaCosta as, on the evidence before this court, Ms. Da Costa had no legal entitlement to the bank draft. To paraphrase the words of the House of Lords in Midland Bank Ltd. v. Reckitt, [1933] A.C. 1 (U.K. H.L.), at p. 14, had Ms. Tran found Ms. DaCosta at the counter of the bank waiting to deposit the RBC bank draft to her own account, Ms. Tran could have, if she knew the facts, demanded Ms. DaCosta deliver the bank draft to her. 14 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

58 In my view, Ms. Tran also had a right to demand immediate possession of the proceeds from BMO in the circumstances of this case. In Boma, the Supreme Court indicated that, where an instrument is payable to someone without any legal entitlement to the proceeds of the cheque, the payee will not have a right of possession as against the owner of the proceeds. At para. 38 of Boma, the court noted that “the payees of the cheques in question had no right of possession to the cheques, as they were not created in respect of legitimate debts owed to them by the appellants.” 59 Here, BMO recognizes that Ms. Tran owed it nothing at the relevant time. Furthermore, BMO treated the funds represented by the bank draft as being the property of Ms. DaCosta and not as BMO’s property. BMO took instructions from Ms. DaCosta on how and where to pay the funds, even though she was not the payee of the bank draft. On her instructions, they credited the proceeds to her account and then permitted her to withdraw the same amount in the form of a new bank draft, payable to Adega, and cash. 60 As I have already noted, wrongful interference in the conversion context does not involve any moral wrongdoing. Because Ms. Tran was entitled to immediate possession of the draft from BMO, the wrongful interference consisted of paying the proceeds to Ms. DaCosta without proper authorization. 61 BMO submits that it is irrelevant whether Ms. Tran intended Ms. DaCosta to have possession of the proceeds. It refers to Bank of Montreal v. i Trade Finance Inc., 2011 SCC 26, [2011] 2 S.C.R. 360 (S.C.C.), at para. 49, for the proposition that when an innocent party con- sensually advances funds to another under an agreement, it voluntarily parts with those funds, and that divestiture conveys the right to use them. Until the transferor discovers the fraud and voids the transaction, the fraudster retains beneficial title. Relying on iTrade, BMO argues that Ms. Tran conveyed the right to use the bank draft when she transferred it to Mr. Adega, Mr. Chung and Ms. Nugent. 62 iTrade does not assist BMO in this case. In the passages cited by BMO in support of its position, Deschamps J. was discussing principles that apply when a transfer occurs under a contract obtained through fraud. Those passages stand for the unremarkable proposition that a contract obtained through a fraudulent misrepresentation is voidable and that, until it is voided, it remains an effective contract. Tran v. Chung J. Simmons J.A. 15

63 Here, there was no contract between Ms. Tran on the one hand and Mr. Adega, Mr. Chung and Ms. Nugent on the other. She gave them the bank draft based on their representation that they would give it to BMO to pay off a debt she thought she owed. Ms. Tran did not receive any consideration and did not enter into any legal agreement. iTrade has no application in this case.

(c) Can BMO rely on a defence under the Bills of Exchange Act? 64 BMO raised an alternative argument for the first time in oral argument before this court. Counsel submitted that, if BMO’s actions amounted to conversion, it is a “holder in due course” and as such can rely on s. 55 of the Bills of Exchange Act to absolve itself of liability. 65 While certain provisions in the Bills of Exchange Act may afford a defence to an action in conversion, since BMO did not plead a statutory defence or raise any such defence before the motion judge, I would not consider this ground of appeal. BMO was required to put its best foot forward on the summary judgment motion; however, it failed to raise this argument. Further, and in any event, BMO did not fully argue this issue on appeal and did not provide sufficient information in the record to allow this court to assess the merits of any defence it may have under the Bills of Exchange Act.

(d) Conclusion 66 On the record in this case, Ms. Tran’s motion for summary judgment should have been granted and BMO’s motion to dismiss her claim for conversion of the bank draft should have been dismissed.

F. Disposition 67 I would set aside the motion judge’s order and replace it with an order allowing Ms. Tran’s motion for summary judgment for conversion and denying BMO’s motion to dismiss her claim. 68 Ms. Tran is awarded her costs of the appeal as well as those in the court below. Ms. Tran will have fourteen days from the release of these reasons to provide brief written submissions on costs. BMO will provide its brief written submissions within fourteen days thereafter.

J. Simmons J.A.:

I agree. 16 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

Grant Huscroft J.A.:

I agree. Appeal allowed. Whatcott v. Canadian Broadcasting Corp. 17

[Indexed as: Whatcott v. Canadian Broadcasting Corp.] William Gary Whatcott, Applicant (Respondent) and Canadian Broadcasting Corporation, Respondent (Appellant) Saskatchewan Court of Appeal Docket: CACV2671 2016 SKCA 51 Ottenbreit, Caldwell, Herauf JJ.A. Heard: March 13, 2016 Judgment: April 1, 2016 Torts –––– Defamation — Damages — Factors to be considered in award — Miscellaneous –––– Plaintiff was Christian “pro-life and pro-family advocate”, and was opposed to homosexual activity on religious grounds — Plaintiff printed flyer which parodied anti-Christian song, entitled and including repeated lyrics, “Kill the homosexual” — Defendant public broadcaster prominently featured title and lyrics of plaintiff’s flyer in news broadcast on related matter, but did not mention plaintiff’s statement on reverse of flyer suggesting that he did not truly advocate murder of homosexuals — Plaintiff brought action for defamation and was awarded global damages in amount of $30,000 on summary judgment — Appeal by defendant was allowed and award was set aside, with nominal damages of $1,000 ordered instead — Plaintiff applied pursuant to R. 47(1) of Court of Appeal Rules for re-hearing of appeal, alleging that court should not have reduced his damages — Application dismissed — Application disclosed no special or unusual circumstance warranting re-hearing of appeal — Plaintiff and not defendant applied for summary judgment — By seeking summary judgment that encompassed award of damages in his favour, plaintiff must be presumed to have put his best case forward on issue of damages — Trial judge erred in law and damages he awarded were consequently reduced on appeal by defendant — There was nothing special or unusual about that circumstance — Reconsideration refused. Civil practice and procedure –––– Practice on appeal — Powers and duties of appellate court — Miscellaneous –––– Reconsideration — Plaintiff was Christian “pro-life and pro-family advocate”, and was opposed to homosexual activity on religious grounds — Plaintiff printed flyer which parodied anti- Christian song, entitled and including repeated lyrics, “Kill the homosexual” — Defendant public broadcaster prominently featured title and lyrics of plaintiff’s flyer in news broadcast on related matter, but did not mention plaintiff’s statement on reverse of flyer suggesting that he did not truly advocate murder of homosexuals — Plaintiff brought action for defamation and was awarded global 18 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

damages in amount of $30,000 on summary judgment — Appeal by defendant was allowed and award was set aside, with nominal damages of $1,000 ordered instead — Plaintiff applied pursuant to R. 47(1) of Court of Appeal Rules for re- hearing of appeal, alleging that court should not have reduced his damages — Application dismissed — Application disclosed no special or unusual circumstance warranting re-hearing of appeal — Plaintiff and not defendant applied for summary judgment — By seeking summary judgment that encompassed award of damages in his favour, plaintiff must be presumed to have put his best case forward on issue of damages — Trial judge erred in law and damages he awarded were consequently reduced on appeal by defendant — There was nothing special or unusual about that circumstance — Reconsideration refused. Cases considered by Caldwell J.A.: Borowski v. Stefanson (2015), 2015 SKCA 140, 2015 CarswellSask 794, 44 M.P.L.R. (5th) 19 (Sask. C.A.) — considered Magna Electric Corp. v. Tesco Electric Ltd. (2015), 2015 SKQB 35, 2015 Car- swellSask 88, 41 C.L.R. (4th) 71, 70 C.P.C. (7th) 276 (Sask. Q.B.) — referred to Shermet v. Miller (2015), 2015 SKQB 34, 2015 CarswellSask 72, 468 Sask. R. 228 (Sask. Q.B.) — referred to Rules considered: Court of Appeal Rules, Sask. C.A. Rules R. 47(1) — pursuant to R. 48(8) — referred to Queen’s Bench Rules, Sask. Q.B. Rules 2013 Generally — referred to R. 7-2 — referred to

APPLICATION by plaintiff for reconsideration of judgment reported at Canadian Broadcasting Corp. v. Whatcott (2016), 2016 SKCA 17, 2016 Car- swellSask 75, 26 C.C.L.T. (4th) 1, 82 C.P.C. (7th) 70, 395 D.L.R. (4th) 278, 472 Sask. R. 311, 658 W.A.C. 311, [2016] 6 W.W.R. 631 (Sask. C.A.), reducing award of damages for defamation made against public broadcaster.

Thomas A. Schuck, for Applicant Matthew Woodley, for Respondent

Caldwell J.A.:

1 William Gary Whatcott applies pursuant to Rule 47(1) of The Court of Appeal Rules for a re-hearing of the appeal decided under 2016 SKCA 17 (Sask. C.A.). He says this Court ought not to have reduced his dam- Whatcott v. Canadian Broadcasting Corp. Herauf J.A. 19

ages on appeal. Mr. Whatcott and the Canadian Broadcasting Corpora- tion [CBC] have agreed to have this application determined on the basis of written submissions pursuant to CA Rule 48(8). They have submitted written memoranda addressing the standard upon which a re-hearing may be granted: [9] That said, re-hearings are not granted for the asking. Considera- tions of cost and finality dictate that a re-hearing should be granted in only special or unusual circumstances. An allegation that the decision is wrong is not enough to trigger a rehearing. See: Storey v Zazelenchuk (1985), 40 Sask R 241 (CA) at 243-44; HDL Invest- ments Inc. v Regina (City), 2008 SKCA 59 at para 3. [Borowski v. Stefanson, 2015 SKCA 140 (Sask. C.A.)] 2 Based on our review, we have determined this application discloses no special or unusual circumstance warranting a re-hearing of the appeal. The fact is Mr. Whatcott applied for summary judgment, not the CBC — although The Queen’s Bench Rules permit a defendant to do so (QB Rule 7-2). By seeking a summary judgment that encompassed an award of damages in his favour, Mr. Whatcott must be presumed to have put his best case forward on the issue of damages, including all material evidence relevant thereto, so that the Chambers judge could properly determine the matters put at issue on their merits (Magna Electric Corp. v. Tesco Electric Ltd., 2015 SKQB 35 (Sask. Q.B.) at para 75, 70 C.P.C. (7th) 276 (Sask. Q.B.); Shermet v. Miller, 2015 SKQB 34 (Sask. Q.B.) at paras 28 and 31). The Chambers judge did that, but he erred in law and the damages he awarded were consequently reduced after an appeal by the CBC to this Court. There is nothing special or unusual about this circumstance. 3 The application for re-hearing is dismissed, with $1,000 in costs to the CBC.

Ottenbreit J.A.:

I concur.

Herauf J.A.:

I concur. Application dismissed. 20 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

[Indexed as: Pinch (Litigation guardian of) v. Morwood] Rebecca Pinch, an infant by her Litigation Guardian Natasha Pinch, and the said Natasha Pinch (Plaintiffs) and Dr. Christopher David Cubitt Morwood, Vancouver Coastal Health Authority, operating a public hospital under the name of Powell River General Hospital, and the said Powell River General Hospital and Nurse Jane Doe (Defendants) British Columbia Supreme Court Docket: Vancouver S136970 2016 BCSC 938 Dillon J. Heard: November 23-27, 30, December 1-4, 2015 Judgment: May 25, 2016 Health law –––– Malpractice — Negligence — Types of malpractice — Fail- ure to diagnose –––– Child was born on November 7, 2011 with severe disability resultant of mother suffering from eclampsia at time of her birth — On No- vember 5, 2011, mother had been experiencing neck pain for two days and attended at emergency room for treatment — B was nurse on duty in emergency department and M was physician on call — B was pre-occupied with patient who had arrived at hospital at 4:00 a.m. complaining of chest pain and who was known to B from previous visits — At emergency, mother complained of sore left neck, and M provided prescription for massage and discharged mother — On November 7, 2011, mother had eclamptic seizure, was taken to hospital by ambulance, and was seizing and unresponsive — Emergency C-section was performed and child was born with severe spastic quadriplegic cerebral palsy with developmental and cognitive impairment — It was uncontested that child’s condition was caused by maternal seizures triggered by eclampsia — Mother and child commenced action for negligence against hospital, B, and M — M and hospital, due to its vicarious liability for acts of B, were liable for child’s injuries — B acknowledged not to have performed thorough nursing assessment and did not properly document her interaction with mother — B did not ask pertinent questions relating to radiation of pain and pregnancy, gave verbal report of normal vital signs to M, and did not return to mother even though she knew that her assessment was incomplete, that other nurse was assisting with other patients, and that other patient was stable — When she noted later that she did not document blood pressure, B did not go back to check monitor even though there were no other patients in triage area — Preponderance of probability after weighing all evidence was that mother’s blood pressure was not taken by anyone Pinch (Litigation guardian of) v. Morwood 21 on November 5, 2011 — Chronic nature of mother’s condition and her condition on day of her seizures supported conclusion that mother’s blood pressure was probably high on November 5 — Mother’s blood pressure, if taken on Novem- ber 5, 2011, would likely not have been normal — Mother did not differentiate between neck and head pain while in emergency but focused on worst of pain, which was at back of her neck — However, she did have pain extending into her head — If asked, plaintiff would have told M and B where head pain was, but B did not ask mother if neck pain radiated anywhere and M had turned his mind away from pregnancy and to neck pain, so his questions did not focus on pregnancy but to differential diagnosis of neck strain — Neither B nor M met standard of care — Based on factual findings, child would most likely not have suffered brain injury had mother been diagnosed with preeclampsia on November 5. Cases considered by Dillon J.: Aslin v. Otto (2003), 2003 BCSC 658, 2003 CarswellBC 1336, [2003] B.C.J. No. 1293 (B.C. S.C.) — considered Belknap v. Greater Victoria Hospital Society (1989), 1 C.C.L.T. (2d) 192, (sub nom. Belknap v. Meakes) 64 D.L.R. (4th) 452, 1989 CarswellBC 621, [1989] B.C.J. No. 2187 (B.C. C.A.) — referred to Borglund v. Fraser Valley Health Region (2006), 2006 BCSC 1338, 2006 Car- swellBC 2286, 42 C.C.L.T. (3d) 132, [2006] B.C.J. No. 2093 (B.C. S.C.) — considered Bradshaw v. Stenner (2010), 2010 BCSC 1398, 2010 CarswellBC 2652, [2010] B.C.J. No. 1953 (B.C. S.C.) — followed Bradshaw v. Stenner (2012), 2012 BCCA 296, 2012 CarswellBC 1936, 78 E.T.R. (3d) 41, 33 B.C.L.R. (5th) 45, 18 R.P.R. (5th) 184, 325 B.C.A.C. 107, 553 W.A.C. 107 (B.C. C.A.) — referred to Bradshaw v. Stenner (2013), 2013 CarswellBC 549, 2013 CarswellBC 550, 447 N.R. 400 (note), 341 B.C.A.C. 320 (note), 582 W.A.C. 320 (note), [2012] S.C.C.A. No. 392 (S.C.C.) — referred to Briante (Litigation guardian of) v. Vancouver Island Health Authority (2014), 2014 BCSC 1511, 2014 CarswellBC 2361, 14 C.C.L.T. (4th) 204 (B.C. S.C.) — referred to Campbell v. Roberts (2014), 2014 ONSC 5922, 2014 CarswellOnt 14573, [2014] O.J. No. 4934 (Ont. S.C.J.) — referred to Carlsen v. Southerland (2006), 2006 BCCA 214, 2006 CarswellBC 1054, 53 B.C.L.R. (4th) 35, 40 C.C.L.T. (3d) 1, 225 B.C.A.C. 150, 371 W.A.C. 150, [2006] B.C.J. No. 973 (B.C. C.A.) — referred to Challand v. Bell (1959), 18 D.L.R. (2d) 150, 1959 CarswellAlta 8, 27 W.W.R. 182, [1959] A.J. No. 49 (Alta. S.C.) — referred to Child v. Vancouver General Hospital (1969), [1970] S.C.R. 477, 71 W.W.R. 656, 10 D.L.R. (3d) 539, 1969 CarswellBC 220, 1969 CarswellBC 260 (S.C.C.) — referred to 22 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

Clements (Litigation Guardian of) v. Clements (2012), 2012 SCC 32, 2012 Car- swellBC 1863, 2012 CarswellBC 1864, [2012] 7 W.W.R. 217, 31 B.C.L.R. (5th) 1, 93 C.C.L.T. (3d) 1, 29 M.V.R. (6th) 1, 346 D.L.R. (4th) 577, (sub nom. Clements v. Clements) 431 N.R. 198, [2012] S.C.J. No. 32, (sub nom. Clements v. Clements) [2012] 2 S.C.R. 181, (sub nom. Clements v. Cle- ments) 331 B.C.A.C. 1, (sub nom. Clements v. Clements) 565 W.A.C. 1 (S.C.C.) — followed Crits v. Sylvester (1956), [1956] O.R. 132, 1 D.L.R. (2d) 502, 1956 CarswellOnt 90, [1956] O.J. No. 526 (Ont. C.A.) — referred to Crits v. Sylvester (1956), [1956] S.C.R. 991, 5 D.L.R. (2d) 601, 1956 Carswell- Ont 84, [1956] S.C.J. No. 71 (S.C.C.) — referred to Croutch (Guardian ad litem of) v. B.C. Women’s Hospital & Health Centre (2001), 2001 BCSC 995, 2001 CarswellBC 1574, [2001] B.C.J. No. 1430, [2001] B.C.T.C. 995 (B.C. S.C.) — referred to Croutch (Guardian ad litem of) v. B.C. Women’s Hospital & Health Centre (2003), 2003 BCCA 472, 2003 CarswellBC 2130, (sub nom. Croutch v. B.C. Women’s Hospital & Health Centre) 186 B.C.A.C. 92, (sub nom. Croutch v. B.C. Women’s Hospital & Health Centre) 306 W.A.C. 92, [2003] B.C.J. No. 2029 (B.C. C.A.) — referred to Durnin v. Victoria Hospital (2012), 2012 ONSC 320, 2012 CarswellOnt 1584 (Ont. S.C.J.) — referred to Faryna v. Chorny (1951), 4 W.W.R. (N.S.) 171, [1952] 2 D.L.R. 354, 1951 Car- swellBC 133, [1951] B.C.J. No. 152, [1952] 4 W.W.R. 171 (B.C. C.A.) — followed Fullerton (Guardian ad litem of) v. Delair (2005), 2005 BCSC 204, 2005 Car- swellBC 298, [2005] B.C.J. No. 276 (B.C. S.C.) — referred to Fullerton (Guardian ad litem of) v. Delair (2006), 2006 BCCA 339, 2006 Car- swellBC 1733, [2006] 9 W.W.R. 205, 55 B.C.L.R. (4th) 252, 41 C.C.L.T. (3d) 1, (sub nom. Fullerton v. Delair) 228 B.C.A.C. 291, (sub nom. Fullerton v. Delair) 376 W.A.C. 291 (B.C. C.A.) — referred to Gemoto v. Calgary Regional Health Authority (2006), 2006 ABQB 740, 2006 CarswellAlta 1315, [2007] 2 W.W.R. 243, 67 Alta. L.R. (4th) 226, [2006] A.J. No. 1278 (Alta. Q.B.) — considered Granger (Litigation Guardian of) v. Ottawa General Hospital (1996), 7 O.T.C. 81, 1996 CarswellOnt 2252, [1996] O.J. No. 2129 (Ont. Gen. Div.) — referred to Jackson v. Kelowna General Hospital (2006), 2006 BCSC 279, 2006 Car- swellBC 419, [2006] B.C.J. No. 387 (B.C. S.C.) — referred to Jackson v. Kelowna General Hospital (2007), 2007 BCCA 129, 2007 Car- swellBC 394, 277 D.L.R. (4th) 385, 237 B.C.A.C. 269, 392 W.A.C. 269, 66 B.C.L.R. (4th) 138, 47 C.C.L.T. (3d) 230, [2007] B.C.J. No. 372 (B.C. C.A.) — referred to Pinch (Litigation guardian of) v. Morwood 23

Jackson v. Kelowna General Hospital (2007), 2007 CarswellBC 2083, 2007 CarswellBC 2084, [2007] S.C.C.A. No. 212, 376 N.R. 396 (note), 256 B.C.A.C. 320 (note), 431 W.A.C. 320 (note) (S.C.C.) — referred to Meyers (Next Friend of) v. Stanley (2003), 2003 ABQB 468, 2003 CarswellAlta 771, [2004] 1 W.W.R. 277, (sub nom. Meyers v. Stanley) 333 A.R. 292, 20 Alta. L.R. (4th) 273, [2003] A.J. No. 685 (Alta. Q.B.) — referred to Meyers (Next Friend of) v. Stanley (2005), 2005 ABCA 114, 2005 CarswellAlta 334, 363 A.R. 262, 343 W.A.C. 262, 251 D.L.R. (4th) 345, 40 Alta. L.R. (4th) 203, 30 C.C.L.T. (3d) 182, [2005] A.J. No. 277, [2005] 10 W.W.R. 605 (Alta. C.A.) — referred to Meyers (Next Friend of) v. Stanley (2005), 2005 CarswellAlta 1561, 2005 CarswellAlta 1562, [2005] S.C.C.A. No. 232, (sub nom. Meyers v. Stanley) 348 N.R. 198 (note), (sub nom. Meyers v. Stanley) 391 W.A.C. 396 (note), (sub nom. Meyers v. Stanley) 401 A.R. 396 (note), [2005] 2 S.C.R. ix (note) (S.C.C.) — referred to Scrimgeour v. Singer (1988), [1988] B.C.J. No. 31, 1988 CarswellBC 3543 (B.C. S.C.) — referred to Skeels Estate v. Iwashkiw (2006), 2006 ABQB 335, 2006 CarswellAlta 705, 63 Alta. L.R. (4th) 26, [2006] 11 W.W.R. 632, [2006] A.J. No. 666 (Alta. Q.B.) — considered Smith (Guardian ad litem of) v. Grace (2004), 2004 BCSC 395, 2004 Car- swellBC 627, [2004] B.C.J. No. 583, 27 C.C.L.T. (3d) 131 (B.C. S.C.) — referred to Smith v. Prieditis (1993), 1993 CarswellOnt 3149, [1993] O.J. No. 899 (Ont. Gen. Div.) — referred to Smith v. Prieditis (1997), 1997 CarswellOnt 1141, [1997] O.J. No. 1276 (Ont. C.A.) — referred to Sozonchuk v. Polych (2012), 2011 ONSC 842, 2012 CarswellOnt 138, 90 C.C.L.T. (3d) 139 (Ont. S.C.J.) — referred to Sozonchuk v. Polych (2013), 2013 ONCA 253, 2013 CarswellOnt 4828, 2 C.C.L.T. (4th) 183 (Ont. C.A.) — referred to Steinebach (Litigation Guardian of) v. Fraser Health Authority (2010), 2010 BCSC 832, 2010 CarswellBC 1445 (B.C. S.C.) — referred to Steinebach (Litigation Guardian of) v. Fraser Health Authority (2011), 2011 BCCA 302, 2011 CarswellBC 1595, 19 B.C.L.R. (5th) 92, 84 C.C.L.T. (3d) 1, [2011] 11 W.W.R. 104, (sub nom. Steinebach v. Fraser Health Authority) 310 B.C.A.C. 142, (sub nom. Steinebach v. Fraser Health Authority) 526 W.A.C. 142 (B.C. C.A.) — referred to Steinebach (Litigation Guardian of) v. Fraser Health Authority (2012), 2012 CarswellBC 831, 2012 CarswellBC 832, (sub nom. Steinebach v. Fraser Health Authority) 327 B.C.A.C. 319 (note), (sub nom. Steinebach v. Fraser Health Authority) 556 W.A.C. 319 (note), [2011] S.C.C.A. No. 411 (S.C.C.) — referred to 24 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

Tekano (Guardian ad litem of) v. Lions Gate Hospital (1999), 1999 CarswellBC 1709, [1999] B.C.J. No. 1763, 16 B.C.T.C. 194 (B.C. S.C.) — referred to Williams (Litigation Guardian of) v. Bowler (2005), 2005 CarswellOnt 3419, [2005] O.J. No. 3323, [2005] O.T.C. 680 (Ont. S.C.J.) — referred to Wilson v. Swanson (1956), [1956] S.C.R. 804, 5 D.L.R. (2d) 113, 1956 Car- swellBC 184, [1956] S.C.J. No. 58 (S.C.C.) — referred to ter Neuzen v. Korn (1995), [1995] 10 W.W.R. 1, 64 B.C.A.C. 241, 105 W.A.C. 241, 188 N.R. 161, [1995] 3 S.C.R. 674, 11 B.C.L.R. (3d) 201, 127 D.L.R. (4th) 577, 1995 CarswellBC 593, 1995 CarswellBC 1146, [1995] S.C.J. No. 79, EYB 1995-67069 (S.C.C.) — referred to

ACTION by plaintiff mother and daughter against hospital, emergency room nurse, and emergency room physician for negligence.

P.T. McGivern, S.K. Raab, N. Ivolgina, L.A. McGivern A. Donaldson (Articled Student), for Plaintiffs K.J. Jakeman, C.B.P. Elder, for Defendant, Dr. C. Morwood J.M. Poole, J.K. Groenewold, for Defendants, Vancouver Coastal Health Au- thority and Jane Doe

Dillon J.: Introduction 1 The plaintiff, Rebecca Pinch (Rebecca), is the four year old daughter of the plaintiff, Natasha Lee Pinch (Natasha), and Jason Pinch. Rebecca was born on November 7, 2011 with severe disability as a result of Natasha suffering from eclampsia at the time of her birth. This action is about whether the defendant doctor, Dr. Christopher Morwood (Morwood), and/or the nurse in attendance, Mary-Jane Barcelonne (Barcelonne) were negligent in their care of the plaintiff mother on No- vember 5, 2011 at the Powell River General Hospital. In the event that liability is found, the defendant hospital has acknowledged vicarious liability for the nurse and damages have been agreed.

Summary of the Evidence 2 This case largely turns upon the facts, and counsel provided lengthy and detailed submissions on the evidence. This summary is intended to provide a full narrative of events but does not attempt to include every detail referred to by counsel. The plaintiffs are referred to by their given names for convenience and no disrespect is intended. Pinch (Litigation guardian of) v. Morwood Dillon J. 25

3 About three weeks before the events of November 5 and 7, 2011, Natasha attended to her new family physician who was to look after her care into the final weeks of her pregnancy. At that time, Natasha was 26 years old and was 25 weeks into her first pregnancy. She supplied urine and had her blood pressure and temperature taken. The doctor commented that her blood pressure was on the high side of normal, something that he attributed to nervousness upon her first visit with him, but otherwise, Natasha was doing well. It does not appear that this blood pressure reading was recorded in the practitioner’s notes. The plaintiff mother did not expect to see the family physician again for four weeks. 4 Natasha had an unremarkable previous health history. She suffered from migraine headaches about once a year; any other headaches were handled with Tylenol. She had work related neck pain that radiated into her shoulder in the fall of 2010. It was relieved by rest and by taking an anti-inflammatory. 5 On November 5, 2011, Natasha had been experiencing pain in her neck for two days. The pain had gotten worse until she reached the point where she could not sleep. She took herself to the Powell River General Hospital around 5:00 a.m. Although Natasha may have used the emergency department in the past in place of a general practitioner, this was different because she had been up all night and was in such significant pain that she drove herself to the hospital very early in the morning. 6 The emergency department at the Powell River General Hospital is a reasonably busy department in a large and relatively isolated catchment area. It is known to serve both as a walk in clinic for patients who cannot access a family doctor and for genuine emergency patients. At night, it is staffed by one physician on call and one full time emergency nurse supported as needed by a “float nurse” who also serves other units in the hospital during her shift. Communication and teamwork are essential. Generally, a patient is seen by a triage nurse and then a nursing assessment is performed and charted. The chart is then placed in the physician’s box and the physician takes the chart when he is ready to see the next patient. 7 The nurses on duty in the emergency department at the Powell River General Hospital from 7:00 p.m. to 7:00 a.m. on November 5, 2011 were Nurse Mary-Jane Barcelonne and Nurse Stephanie Riggs (Riggs). Barcelonne had been a registered nurse since 1989. She had practiced at the Powell River General Hospital for 18 years, the last 15 years as a float nurse. She had extensive training and education in maternity and 26 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

emergency room nursing, including taking a course in 2006 on the Cana- dian Triage and Acuity Scale (“CTAS”), the process for triaging patients in an emergency room according to their presenting complaint. Barcelonne was reputed to be a competent, reliable, and experienced registered nurse. Riggs had worked as a registered nurse with Barcelonne since 1993 at the Powell River General Hospital. 8 The physician on call on November 5, 2011 was Dr. Christopher Morwood. Morwood was a family practitioner with standard training in obstetrics for a family practice resident and a special interest in emergency medicine. Since 2006, he had a family practice in Powell River and a regular, one shift per week, rotation in the emergency department at the Powell River General Hospital. His family practice did not include obstetrics after the first trimester of pregnancy. He had not practiced obstetrics or taken an obstetrics related course since his residency. Dr. Morwood knew Nurse Barcelonne well as a competent and trustworthy nurse. 9 In testimony, Natasha remembered the pain that brought her to the hospital as worst at a spot located one to two finger lengths below the base of her skull towards the back and left side but also travelling down the side of her neck and into her shoulder and head. She said that she had an ache in her head up the back of her skull and around the top of her ear, coming up from the pain in her neck. The pain in her head was different from any previous headaches or her neck pain in 2010 because it was towards the back of her head, coming up from her neck, and intense. In cross-examination, the plaintiff said that the pain in her neck went to just below her ear. She also acknowledged that she had said in discovery that the only symptom that she experienced was neck pain. She had been taking Tylenol every four hours without effect. She knew that she could not take an anti-inflammatory because she was pregnant and needed to know what else she could take. 10 Upon arrival at the hospital, Natasha walked to the nurses’ desk and reported to the nurse there that she had “neck pain” and was 28 weeks pregnant. She did not think to differentiate between neck pain and headache, but just said that she had “neck pain”, the only symptom that she presented. She told the nurse that she had similar neck pain in the past but could not take an anti-inflammatory and needed to know what to take. There may have been other questions asked and answered but Natasha could not recall. Pinch (Litigation guardian of) v. Morwood Dillon J. 27

11 Natasha said that the nurse did some “stuff with the computer” and then told Natasha to wait in a chair in the triage area. This was right across, about nine or ten feet, from the nursing station where someone typically checked in to emergency. Natasha sat down and waited. Natasha said that she remained at all times in the triage bay. 12 While waiting, the plaintiff mother noticed a machine on a pole with a computer monitor and some baskets on it. It had a temperature device and wires attached to it for blood pressure readings and also a finger clip. The monitor was not beeping or making any sound. This monitor is known as an MP50 and is used in the emergency department to monitor ECG readings, take heart and respiratory rates, measure oxygen saturation levels and take blood pressure readings. 13 Barcelonne was the “float” and after hours supervising nurse in the early morning of November 5, 2011. Barcelonne was in the emergency unit as both the triage and caregiving nurse when Natasha presented in the emergency department. She was responsible for Natasha’s care until another nurse took over. Barcelonne had experience with pregnant patients with preeclampsia. She knew that the symptoms included increased blood pressure, headache, visual disturbances and light sensitivity. It was Nurse Barcelonne’s practice to take a blood pressure reading on all pregnant patients who presented in emergency. She normally used the automated MP50 machine and repeated the process after five to 15 minutes if the reading was elevated. She knew that a normal blood pressure reading was below 140 systolic and below 90 diastolic. 14 As an experienced nurse, Barcelonne understood the importance of timely and accurate charting to continuity of care and to communication between professionals. She knew that she must chart vital signs once taken. She knew that documentation recorded the care provided to a patient and demonstrated whether nursing knowledge, skill, and judgment had been applied according to professional standards. She knew the process for documenting a late entry onto a patient’s chart and for correcting documenting errors. She knew that the practice standard for registered nurses said that application of the principles of timely and accurate documentation meant that if something was not documented, it was question- able whether it was really done. She knew that she should go back and complete unfinished documentation at the earliest opportunity. 15 Barcelonne understood the process to triage a patient based first upon the presenting complaint and then according to modifiers including vital signs and pain severity. Assessment of a complaint of pain in and around 28 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

the neck and head included asking whether there was any radiation of pain into the head area and the severity of that pain and then documentation of the answer to same. A triage level could not be given without first having a full set of vital signs, including blood pressure. As she was also the caregiving nurse, Barcelonne’s duties went beyond triage and extended to taking a full history and assessing the presenting complaint. 16 Barcelonne’s usual practice was to triage and assess the emergency room patient in one process. She asked the patient to sit down while she asked questions about the presenting complaint and took notes. She took vital signs including temperature, oxygen saturation level, heart rate, respiratory rate, and blood pressure, in that order. The automated monitor machine usually alarmed in a low beeping sound when the pulse and oxygen saturation leads were removed from the patient and Barcelonne would hit the “pause alarm” button. This would stop the technical alarm from sounding for three minutes. Application of the blood pressure cuff connected to the monitoring machine was last in the process. The whole process takes about two minutes if all is normal. The results of taking the vital signs are recorded on the patient’s emergency outpatient registration form, the emergency “chart”, which is attached to a clipboard that is taken to the bedside. The blood pressure reading might be recorded before or after the blood pressure cuff is removed from the patient, depending on whether Barcelonne was writing at the time that the reading showed up on the monitor. A triage score is then given, the patient is moved from the triage area to an examination room, and the chart is placed in the physician’s box at the end of the nursing station. 17 Nurse Barcelonne described that Natasha entered the emergency room and Barcelonne directed her to a chair in the triage area. Barcelonne then went back to the nursing station to enter the initial information onto the computer generated outpatient registration record. The initial information entered onto the computer is in typed form as opposed to handwritten. It is recorded that Natasha presented at emergency at 5:15 a.m. This accords with the plaintiff mother’s recollection of her arrival time. It was also noted that the plaintiff complained of “sore [left] neck for two days” and gave the name of her family doctor. Barcelonne then placed the chart onto a clipboard and returned to the triage area. 18 Barcelonne said that she saw Natasha for purposes of assessment and triage between 5:15 and 5:30 a.m. She remembered this time because she was interrupted by a call from another patient. The records of that patient indicate an alarm call at 5:30. Barcelonne’s notes on Natasha’s chart, Pinch (Litigation guardian of) v. Morwood Dillon J. 29

however, indicate, in acknowledged errors, that Barcelonne saw Natasha at 06:00 and assessed her at 06:00. Barcelonne said that Natasha told her that she had awoken with a sore neck and wanted to know what medications she could take in the circumstance of her pregnancy when she knew that she could not take non-steroidal anti-inflammatories or “NSAIDS”. Barcelonne said that she asked Natasha about her pregnancy and learned that the baby was moving normally. Barcelonne acknowledged in cross- examination that she failed to chart some of the answers related to the pregnancy, that she should have charted them, and that the failure to do so was a breach of her usual routine. 19 Barcelonne’s notes were in both blue and black ink, with the notations in blue occurring first. The triage time notation of “06:00” in blue ink would have been noted first, along with notation of elaboration of the nature of the presenting complaint, of the fact that Natasha had taken Tylenol at home, of her pregnancy at 28 weeks, and of the triage determination at level 4. Triage level four is one away from the lowest urgency score of five. Barcelonne also signed off on the chart in blue. Barcelonne took the readings for temperature, pulse, respiration, and oxygen saturation and noted the results in black ink. Barcelonne said that she recorded these other vital sign readings before taking the blood pressure. Other recording in black included the time of 06:00 for the nursing assessment and that the patient was taking prenatal vitamins and iron. 20 Barcelonne said that she then took the blood pressure and that it registered an outcome display on the monitor. She said that the reading was normal. At trial, she remembered it to have been below 130 systolic but she could not remember the diastolic. Usually, Barcelonne took off the blood pressure cuff before she recorded the blood pressure reading. She could not remember whether she had removed the blood pressure cuff. If the blood pressure reading had been 160 systolic and 90 diastolic, the monitor was set so that an alarm in the nature of a low beeping sound would have sounded. Barcelonne said that no alarm had sounded. Barcelonne did not record a blood pressure reading, even though it would have taken a few seconds. She explained that she was called away by an urgent “red” alarm from another patient. 21 On cross-examination, Barcelonne agreed that she could not have given a triage score until she had a blood pressure reading and said that she recorded the triage score after she took the blood pressure. She could not explain why she would have had time to record the triage score and not the blood pressure. It is also noted that the triage score was written in 30 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

blue ink, so would have been written before writing the results of the vital signs according to Barcelonne’s evidence. She testified that she had completed her triage, but she also testified that her discovery evidence, that she was unable to finish her triage because she had been “pulled away”, was true. 22 Barcelonne said that all of this, including the recording of notes, occurred in the triage bay. Barcelonne said that she may have left the chart in the triage bay when she was called away. 23 Natasha said that, while she was waiting, about 20 or 30 minutes after she had arrived, there was a commotion, with beeping and alarms, in another bay to her right. Natasha said that her time with the nurse in the triage area had not been interrupted by a commotion. She also said that the commotion happened after she was seen by the nurse. She disagreed in cross-examination that the commotion occurred after she was seen by the nurse but before she was seen by the doctor. She also said that she had not been left with a blood pressure cuff on her arm and was certain that she would have remembered if that was so. She said that no other nurse came in to where she was seated. 24 The commotion was due to a patient in stretcher 4 who had a bradycardia event that all agreed warranted immediate and urgent attention by emergency room personnel. Barcelonne said that this patient was known from previous visits to emergency. Personnel had been trying to capture the bradycardia events and were monitoring this patient’s vital signs every 15 minutes. The time of this event as charted from the monitor data and accepted to be accurate was 5:30 a.m. Nurse Barcelonne noted in this patient’s chart that she had been “with another ER patient at the time”. Barcelonne explained that she made this note to explain why she had not been with the bradycardia patient at the time of the event. Nurse Riggs was the emergency nurse on duty in the emergency department that night but was on her 30 minute break when the event occurred. She heard Barcelonne call for her and she rushed to the patient with the crash cart. Dr. Morwood was called to the emergency department to attend to this patient. During the care of this patient, Nurse Riggs also had to manage another patient who needed assistance so there was quite a lot happening at that time. The bradycardia patient required stabilization and cleanup of vomit and feces. Barcelonne said that she remained with and could not leave this patient. She said that she had no further dealings with Natasha. Riggs did not see Barcelonne with Natasha after the bradycardia event. Pinch (Litigation guardian of) v. Morwood Dillon J. 31

However, Riggs also said that she and Barcelonne relieved each other in the care of the bradycardia patient until the end of their shift. 25 According to Natasha, about 40 to 50 minutes after she arrived, Nurse Barcelonne came to her in the triage area and asked whether she was taking anything for pain. Natasha replied that she was taking Tylenol and also told Barcelonne that she was taking prenatal vitamins and iron. Natasha did not recall being asked about any visual disturbance or whether the baby was moving. The nurse then used the nearby machine and took the plaintiff’s temperature. Natasha did not recall her oxygen saturation level being taken with the finger clip but testified that it could have been done. She also did not remember the nurse taking her pulse but agreed that it could have been done. Natasha said that the nurse then went over her chart, wrote something down, left the chart on the table, said that the doctor would be with her shortly, and then left. The nurse had been with her about five minutes. 26 The plaintiff mother did not remember her blood pressure being taken at any time while she was at the hospital and said that she would have remembered rolling up her sleeve and having the blood pressure cuff on her arm. She was used to having her blood pressure taken when she went to the general practitioner but had no memory of it being taken on that day. She said that the blood pressure monitor did not make any noise at any time and said that no other nurse came into the triage area while she was there. Natasha testified that she then waited about 10 or 15 minutes until Dr. Morwood came by. 27 Barcelonne testified that she had no concerns about Natasha concerning preeclampsia. If there had been a concern, she would have ordered a urine test, discussed the issue with the doctor, and referred Natasha to maternity. 28 Dr. Morwood knew about hypertension in pregnancy and that it was an indicator of preeclampsia, but he had encountered preeclampsia only once. He appreciated that it was important to manage any potential issues as they related both to the mother and to the baby as patients in the circumstance of a pregnant mother presenting in emergency. If he identified a pregnancy related issue or was uncertain if it was pregnancy related, then he would seek obstetrical support. As a practitioner, he fully understood the importance of adequate charting within the hospital setting and charted so that another person looking at the chart would understand his thinking upon assessment of a patient, including notation of all signifi- 32 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

cant signs and symptoms and his discussion with the patient. His stated approach was to rule out any diagnosis of serious consequence first. 29 Dr. Morwood noted that he saw Natasha at 5:50 a.m., about 12 hours into his 14 hour shift on the night of November 5, 2011. He testified in direct examination that after his attendance upon the patient with the bradycardia event, Nurse Barcelonne approached him at the nurses’ station. She told him that she had triaged a 28 week pregnant woman with left sided neck pain who wanted to know what medications she could take because she was pregnant. Barcelonne told Dr. Morwood that “her vital signs were all normal”. Nurse Riggs, who was with another patient at the time about ten to fifteen feet away, said that she heard Dr. Morwood ask Barcelonne about the patient’s vital signs and Barcelonne had told him that they were normal. Dr. Morwood said that, when he was told that vital signs were normal, he took this to include all vital signs, particularly blood pressure, which was important in a pregnant patient. 30 In direct examination, Barcelonne could not specifically recall such a conversation with Dr. Morwood or where it may have occurred but agreed that she may have had one because sometimes she gave a verbal report about vital signs. She said that she told the doctor that Natasha had come in with a sore neck and that she wanted to know what she could take because she could not take NSAIDS. She said that she told the doctor that Natasha’s blood pressure was normal and that her temperature, oxygen saturation, heart rate, and respiratory rate were normal. In cross- examination, Barcelonne said that she could not recall this conversation but did remember a conversation with the doctor at the end of the shift. At another time, she said that there may have been a conversation before the doctor saw the patient because sometimes that happens. Neither Barcelonne nor Dr. Morwood noted this conversation in the chart. 31 Dr. Morwood did not look at Natasha’s chart before he went to see her, except to note her name on the one page emergency room record. The chart was not in the doctor’s box where he normally would have reviewed it prior to seeing the patient. He relied upon the verbal information from Barcelonne about the vital signs. His normal practice was not to re-read the chart if he had been given a verbal report except to check the name of the patient. 32 Dr. Morwood said that he saw Natasha in the “eye room”. The eye room is used mostly for eye examinations but it can also be used for other purposes. There is no vital signs monitor in that room. Barcelonne said that she saw Natasha go into the eye room with Dr. Morwood Pinch (Litigation guardian of) v. Morwood Dillon J. 33

through the curtain of the bay where Barcelonne remained with the bradycardia patient. Nurse Riggs said in direct examination that she noticed Dr. Morwood go to see Natasha in the eye room. However, Riggs also said that she later went to turn off the monitor in the triage bay. Riggs had also said in a previous statement that she was not certain that she had seen Dr. Morwood with the patient in the eye room and it could have been at the triage bay. Dr. Morwood said that it would have been unusual to have seen Natasha in the triage area which was used for minor matters, although it was possible, and there was a gurney there. Natasha testified that she never went to a room called the eye room but remained at all times in the triage bay. The triage bay is right beside the eye room to the right of the nursing station. The triage bay holds stretcher number 5 which was indicated on Natasha’s chart to be her location at the hospital. It is used for minor matters and is not normally used for people to lie down, although there is a gurney there. There is also a monitor used to take and record vital signs that is not hooked up to the central computer and so cannot be monitored from the nursing station. Barcelonne said that the triage area is used for a “quick assessment”. 33 Dr. Morwood described his general approach to a patient who presented in emergency with neck pain and his approach if the patient was pregnant. He knew, of course, that a patient may not appreciate the nature of her problem or the significance of symptoms and might have her own idea of what the problem is when she presents to the nurse or doctor in emergency. In his direct examination at trial, Dr. Morwood stated that it was not his practice to do a routine antenatal assessment of a pregnant patient presenting in the emergency department with an issue that he thought was unrelated to the pregnancy. Generally, his assessment included review of the information charted by the triage nurse, taking a history from the patient, and performing a physical examination, during which he considered his differential diagnosis. In considering his differential diagnoses, Dr. Morwood said that he used whatever data was available including all information relevant to the presenting complaint and the health history. He then decided upon his final diagnosis. It was common for patients to present in emergency with neck pain. The doctor said that, depending on the description of symptoms from the patient as arose from open questions related to the location of pain, its extension, and worsening, he might ask specific questions to rule in or out specific diagnoses. He would not expect to have to ask specific questions about a headache and it was not his practice to do so. The doctor stated that the focus in emergency was on the complaint that brought the patient to the 34 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

emergency on that day. If it was neck pain, he would ask about previous episodes, the history, severity and duration of the pain, its location and radiation, particularly whether it radiated into the arm, and what had been tried so far. He asks about possible precipitating factors such as trauma, strain, fall, or infection before going on to his physical examination. The differential diagnosis considered by Dr. Morwood for patients presenting with posterior neck pain does not include anything related to pregnancy. 34 In direct examination, Dr. Morwood said that if the patient in emergency was pregnant, then there were additional concerns. If a patient in late term pregnancy had “an obvious presentation related to pregnancy”, they would be referred to the maternity floor by the assessing nurse. If the doctor saw the patient and if he determined that there was a pregnancy related concern, he would generally consult with an obstetrician and refer the patient to maternity. He then said that, if the patient stayed in emergency, he would ask screening questions about the pregnancy, generally related to whether the patient had regular prenatal medical care and whether there had been any specific concerns in the pregnancy. If the pregnant patient’s presenting complaint did not appear to be pregnancy related, Dr. Morwood did not request investigative tests. In particular, he did not request a urinalysis and it was not the practice in the hospital at that time to perform urinalysis upon every pregnant patient who presented in the emergency department. 35 In discovery and upon cross-examination, however, Dr. Morwood stated that, regardless of the reasons stated by the pregnant patient for presenting in emergency, it was important to screen a pregnant patient for any signs of pregnancy related problems and to chart any positive indicators. In this context, a headache presented a “red flag” and a headache was anything above the neck. If a patient complained of neck pain, it was important to determine whether it radiated into the head. If the pain is in the head, it must be evaluated to rule out preeclampsia. Dr. Morwood said that he relied upon Barcelonne’s report of “normal” vital signs and his screening questions of Natasha related to her pregnancy to put aside any consideration of preeclampsia. He knew that the major purpose of taking a blood pressure reading in pregnancy was to detect preeclampsia. 36 Prior to his assessment, Dr. Morwood needed to have pertinent information such as vital signs. He stated that it was the responsibility of the nurse and particularly the triage nurse to ensure that the information was, Pinch (Litigation guardian of) v. Morwood Dillon J. 35

in fact, obtained. It was his responsibility to ensure that he had the necessary information, such as the blood pressure reading, for purposes of his assessment. He stated that information about vital signs could be obtained verbally or written in the chart. He said that it was common to receive a verbal report from nurses in the emergency room. He was interested to know if the results were abnormal. He would normally have noticed if all of the vitals had been recorded as checked. He also said that he could receive this information verbally. He agreed that blood pressure was an important indicator of potentially life threatening conditions such as preeclampsia in a pregnant patient. He knew that a blood pressure reading of greater than or equal to systolic 140 and/or greater than or equal to 90 diastolic is indicative of preeclampsia. Dr. Morwood could not come to a proper diagnosis in this case without having a blood pressure reading done and without knowing the result. It would be important to know that the blood pressure was normal. He agreed that all of the vitals that were recorded in Natasha’s record were recorded as normal. He did not recall asking Barcelonne about a missing blood pressure reading. He also knew that headache, wherever it occurred in the head, was also a symptom of preeclampsia. It was important to know how long a complaint of neck pain had been going on and whether it radiated into the head. 37 The plaintiff described what occurred with Dr. Morwood. She said that he looked at her chart that had been left on the table and asked her how her pregnancy had been going. She said it had been fine. She did not tell the doctor about the high blood pressure reading when last at the general practitioner because there had been no indication that it was a matter of concern. However, if she had been asked about her blood pressure, Natasha would have told the doctor that it had been on the high side at her last prenatal doctor visit. He asked where the pain was. She told the doctor that she was having terrible neck pain and pointed to the spot, about mid-neck, where it hurt worst. She described her neck as “locked”. She said that it radiated left out to her shoulder and up to her head to the base of her skull just below her ear. Natasha testified that, when she was with Dr. Morwood, the pain was aching at ear level, at the side of her head. She may have said that it radiated into her head but did not specifically tell the doctor that she had pain in her head or that she had a headache. Natasha said that the doctor did not ask if she had any pain radiating into her head or towards her head. He did not ask about where the pain was travelling. If he had asked, she would have told him that her head was aching but that it was coming from her neck. She did not recall 36 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

any part of the conversation related to the location and nature of her work but agreed that this may have been discussed. 38 Dr. Morwood could not recall initial discussion with Natasha except that she said that she had neck pain, that she had similar symptoms in the past, and she wanted to know what she could take for the pain. He believed that he then asked her about her pregnancy but could not recall any specific questions. His impression was that she had no concerns about the pregnancy and was comfortable with how the pregnancy had gone. From this information, he would not have asked more specific questions. He would not have asked about blood pressure. His focus was then upon the neck pain. He did not remember specific questions asked except that he asked whether the pain radiated into her arm. He had no specific recollection of asking the more general questions related to the location and extension of the pain but thought that he would have asked based upon his usual practice. He recalled talking about her work at Ca- nadian Tire and whether she had done any heavy lifting or other activity that might have caused neck strain. He formed the impression that her neck pain was localized to the center base of her neck to the left side and that it did not extend beyond that. He did not recall that she said that the pain came up from the neck to the top of the ear but agreed that she may have said that the pain went up from the left side of her neck to just below the ear. He did not recall any mention of headache or pain in the head. If she had said that she had an ache around her ear, it would have meant a headache which was a different symptom. He did not consider headache. If he had considered headache, Dr. Morwood said that his first thought in a pregnant patient would have been preeclampsia. However, he did not consider headache and concluded from the conversation that the pain was musculoskeletal in nature. 39 Dr. Morwood said that if he had suspected preeclampsia, the entire assessment would have changed. He would have repeated the blood pressure, done a urinalysis, consulted with an obstetrician, and referred Natasha to the maternity floor. 40 Natasha said that the doctor palpated her neck and rotated her head. He then told Natasha that she had neck strain. He confirmed that she could not take anti-inflammatory medications. He told her to lie on the gurney with a towel rolled up between her shoulder blades and left her to rest there for about twenty minutes. When he returned, he gave her a prescription for a book called “Pain Free at Your PC”, gave her a prescription for massage, told her to see her general practitioner or come Pinch (Litigation guardian of) v. Morwood Dillon J. 37

back to emergency if the pain got worse, and discharged her. Natasha thought that she was discharged around 7:00 a.m. based upon her recollection of the time when she arrived home. 41 Dr. Morwood recalled parts of the examination of Natasha. Her de- meanor and presentation were consistent with neck strain. He felt tension in the mid base of her neck and noticed that rotation to the right increased her pain. He did not do any further testing. His differential diagnoses were all related to cervical strain. The information from Barcelonne about the vitals being normal played no part in his final diagnosis. He did not remember asking Natasha to lie on the gurney and rest but agreed that he might have suggested the bolster treatment. He recalled recommending massage and advising Natasha to see her family practitioner if the pain persisted or to return to emergency if the pain worsened. He had spent a maximum twenty minutes in total with Natasha. 42 In keeping with his obligation to keep an accurate and complete record of his interaction with a patient, Dr. Morwood said that he usually records the details of his assessment of the patient on the chart after he has left the patient. This notation needs to reflect the nature of the assessment that was done. Dr. Morwood said that he notes the positive symptoms as described by the patient and the most pertinent findings of his physical examination. He said that he would note a brief summary of the pregnancy and any issues related thereto if any had arisen. It was his usual practice to chart his differential diagnoses, but only if there was some uncertainty about the diagnosis. The doctor said that if there was something not documented in the nursing assessment that he was interested in, he would ask the nurse about it when he completed his charting. 43 Dr. Morwood completed his portion of the outpatient registration record or the emergency room record after Natasha had been discharged from the hospital. This would have been the first time that he actually looked at the chart beyond checking Natasha’s name. He recorded that the patient’s chief complaint was neck pain, that she had a history of same, that she had previously treated the pain with NSAIDS and rest, that she had been sore for two days but was “locked” now and that she had no trauma or infectious symptoms. His notation of examination revealed a stiff neck with pain on rotation. The final diagnosis was “neck strain” with a plan for massage and stretches. All of this is consistent with Dr. Morwood’s description of his general approach towards someone with neck pain and a pregnant patient without an obvious presentation related to pregnancy or without a pregnancy related concern. 38 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

44 Dr. Morwood acknowledged in discovery that he did not chart anything about Natasha’s pregnancy and could not explain why he departed from his normal practice. In direct examination, he agreed that he should have written down a summary of his pregnancy screening questions but explained that he did not probably because her symptoms were “totally unrelated to the pregnancy”. He did not recall noticing that blood pressure had not been recorded in Natasha’s emergency room chart. In cross- examination, Dr. Morwood said that he did not follow his normal practice to chart a summary of the information that the patient told him about the pregnancy. He did not follow his normal practice to confirm that the blood pressure was taken and recorded. Normally, he would have noticed that the blood pressure was not recorded but did not recall if he noticed in this case. He did not notice that the vital signs that were noted were reported as normal. 45 Nurse Riggs said that, after she had seen Dr. Morwood with Natasha (she was unsure as to the time), she noticed that the monitor in the triage area was beeping. It was making a low beeping sound that it usually makes when nobody is attached to the blood pressure cuff or when the diastolic blood pressure number was over 90. Natasha testified that no noise came from the monitor and Dr. Morwood was not asked whether the monitor had been beeping at any time. Barcelonne had not heard any beeping from the monitor. Riggs said that she pushed the button below the monitor at the left side to turn off the screen and the beeping. She did not make note of any information on the monitor. There had been no other patients in this area since the plaintiff mother. 46 Barcelonne completed her charting of patients at the nursing station. She went back to the monitor of the bradycardia patient to record a late entry of the time and data related to the bradycardia event as at 5:30 a.m. Barcelonne also reviewed Natasha’s chart. Exactly when this occurred is uncertain but it must have been after 6:00 a.m. when the bradycardia patient was stable. She noticed that she had not documented the blood pressure reading. Barcelonne said that she had a conversation with Dr. Morwood about the missing blood pressure reading around the nursing station after she was finished with the bradycardia patient, near the end of her shift. She testified that he had noticed that the blood pressure was not documented. She said that he asked her about Natasha’s blood pressure reading and whether it was normal. She told him that it was and explained that she had been unable to chart it because she was with the other patient and could not remember the exact number so was not going to chart it. Pinch (Litigation guardian of) v. Morwood Dillon J. 39

47 Dr. Morwood did not recall searching out Nurse Barcelonne after he had completed his charting, around 7:00 a.m., to ask her about Natasha’s blood pressure. He said that he never had any doubt that the blood pressure was taken. He said that he might have asked Nurse Barcelonne about the blood pressure if he had noticed that the blood pressure reading was missing but he did not notice this. He would have accepted a verbal report that the blood pressure was normal in the context of his final diagnosis of neck strain and his reliance upon Nurse Barcelonne, whom he considered to be reliable. 48 Barcelonne said that, around the same time as her conversation with Dr. Morwood and while at the nursing station, Riggs told her that she had turned off the machine. Barcelonne said that she assumed that the reading was gone. She did not go and check the monitor. She could not remember the reading and did not document it. Riggs described that before her shift ended at 7:00 a.m., she had a conversation at the nursing station with Nurse Barcelonne who told Riggs that she had not written down the blood pressure numbers from Natasha Pinch and could not remember the numbers. Riggs asked why she didn’t just put down that it was normal but Barcelonne was not prepared to do that. Barcelonne did not document late entry information about the blood pressure reading in any way. Barcelonne said that the reading had been normal. Riggs said that Barcelonne was upset with Riggs for turning off the monitor. Neither Riggs nor Barcelonne went back to the monitor to retrieve Natasha’s data even though the monitor had not been used for another patient and would have retained the data. Barcelonne said that she did not call Natasha back to the emergency because she was confident that the blood pressure reading had been normal. 49 When Natasha arrived home, she told her husband that she had neck strain and was to rest and take massage. A massage appointment was booked for around noon that day. When Natasha filled out the massage intake form, she described her current condition as “neck pain and stiff- ness” for three days. She was asked to indicate in writing the location and nature of her symptoms. She indicated stabbing pain on the left side of her neck to shoulder and aching on the left side to the top of her head. Natasha said that the headache was a little bit higher and worse than it had been that morning at the hospital. The pain had been at about the level of the ear, into the side of her head, earlier at the hospital. Natasha said that she could not tell exactly where the pain was as between her head and her neck, but, at the hospital, it was at the ear and down. 40 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

50 The head and neck pain continued to worsen over the weekend. By Sunday, November 6, the pain was within the left side of her head. On Monday morning, Natasha had decided to see her general practitioner. After her husband went to work, she planned to call and then her husband would return to take her to the doctor. But Natasha had an eclamptic seizure before she could call. She was found unconscious by her husband. Natasha has no further memory of that morning except flashes of being at the Powell River General Hospital and seeing Dr. DuPlessis. 51 The plaintiff was taken to hospital by ambulance and presented at the hospital with a blood pressure of 153/113. Urinalysis showed +4 of proteinuria. Natasha was seizing and unresponsive. Dr. DuPlessis administered medication for eclampsia and the plaintiff mother’s blood pressure improved but remained variable. The plaintiff was helicoptered to Van- couver where an emergency caesarean section was performed. 52 Rebecca was born with severe spastic quadriplegic cerebral palsy with developmental and cognitive impairment. It is not contested that this condition was caused by maternal seizures that were triggered by eclampsia. 53 Natasha was unable to see her baby daughter for a few days but eventually held her after a week. She did not know that there was anything wrong with Rebecca until January. Natasha was told that she had an eclamptic seizure from high blood pressure or hypertension in pregnancy. Upon learning that she had an eclamptic seizure related to hypertension, Natasha wondered why they had not taken her blood pressure when she was in the hospital in Powell River a few days earlier. She did not remember them taking her blood pressure and wanted to know if it had been done. This thought remained in her mind until she and her husband attempted to obtain the hospital records from November 5. When only the records for November 7 were sent, the plaintiff mother retained counsel to get the November 5 records. 54 In the meantime, Dr. DuPlessis, the specialist who attended to Natasha on November 7, had reviewed the records to ascertain whether there had been previous warning signs. He also had a conversation with Nurse Barcelonne. She told the doctor that she had taken Natasha’s blood pressure on November 5 and that the blood pressure was normal. Barcelonne had no recollection of this conversation. Dr. DuPlessis was not asked about a conversation that he had with Dr. Morwood following November 7. Pinch (Litigation guardian of) v. Morwood Dillon J. 41

55 Dr. Morwood said that he reviewed the chart upon learning about events of November 7. He noticed that the blood pressure reading and parts of his documentation were missing. He said that he spoke with Dr. DuPlessis who told him that he had spoken with the nurse. Dr. Morwood said that he told Dr. DuPlessis that the nurse had told him that the vitals were normal. Dr. Morwood testified that he also spoke with both Nurse Barcelonne and Nurse Riggs together. They recalled that Natasha reported only left sided neck pain without mention of headache. Both recalled the conversation that the vitals were normal. Barcelonne told Dr. Morwood that she had taken the blood pressure and that it was normal but she could not remember what the number was. 56 Rebecca remained in hospital until February 7, 2012. She is significantly disabled, requiring a feeding tube. 57 The plaintiff mother had no memory of her blood pressure being taken at the Powell River General Hospital on November 5 and wanted to check the hospital record. There is no note of blood pressure on the hospital record. The plaintiff agreed that it was fair to say that the record informed her memory of events.

Summary of Expert Opinions (a) Dr. Gary Feinstadt 58 Dr. Gary Feinstadt is a family practitioner with experience in rural hospital environments, including emergency and maternity care. He has worked closely with and trained nursing staff in these locations. He was qualified to provide an opinion with respect to the standard of care of an emergency room physician in a rural environment and with respect to the standard of care of an emergency room nurse in a rural environment. 59 Among the facts that Dr. Feinstadt was asked to assume were that the neck pain experienced by Natasha radiated into her head and that she had been told by her family physician that her blood pressure was on the higher end of normal. Neither of these assumptions came from his review of the records. Although unaware that the pain also radiated into the shoulder, he said upon cross-examination that this was consistent with neck strain but did not rule out other causes, particularly preeclampsia if the pain also involved the head. He said that once head pain is involved, preeclampsia must be part of the differential diagnosis. Dr. Feinstadt was aware that no blood pressure was noted on the chart but did not conclude from that fact that no blood pressure had been taken. 42 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

60 Dr. Feinstadt said that a physician working in an emergency department should take a systematic approach to a patient including a review of nursing notes, thorough history, appropriate physical examination, and preparation of a list of differential diagnoses. This is especially so in the case of a 28 weeks pregnant woman in her first pregnancy presenting early in the morning with neck pain. The presenting complaint would only be the starting point. The diagnosis of neck strain in this case would be a diagnosis of exclusion after other potentially more serious diagnoses, such as preeclampsia, had been reasonably ruled out. Dr. Feinstadt agreed that neck pain is not, in itself, a symptom of preeclampsia but said that pain is not isolated to a specific zone and head and neck pain together can be symptomatic of preeclampsia. 61 Dr. Feinstadt was aware of the past and recent history of neck pain, previous treatment with anti-inflammatories, and the fact that traditional pain medication was not working as recorded by Dr. Morwood. He was also aware that Natasha had an episode of similar pain in the past with no history of recurrence. However, Dr. Feinstadt concluded that Dr. Morwood failed to take an adequate history because he failed to document the severity of the pain, onset frequency and duration, radiation of the pain including the head, associated symptoms, and nocturnal compo- nent. The history would have included information about elevated blood pressure, which would have prompted further assessment in this case. Dr. Morwood failed to elicit the history of blood pressure at the upper end of normal on the previous prenatal visit. Dr. Feinstadt said that Dr. Morwood also failed to elicit the fact that the pain radiated into the patient’s head. 62 In addition, blood pressure should have been accurately documented, if not by the nurse, then by Dr. Morwood. Dr. Feinstadt said that it was the responsibility of the physician to ensure that the vital signs are taken and recorded in numerical fashion in the appropriate space on the emergency form. Without that recording, the physician cannot make a reasonable assessment. Dr. Feinstadt said that the presentation of the plaintiff mother should have alerted Dr. Morwood to the possibility of preeclampsia, thus making the documentation of blood pressure essential. 63 Dr. Feinstadt also said that physical examination of Natasha should have included examination of the abdomen for foetal health and investi- gational urinalysis, among other tests. If this could not be done in emergency, then Natasha should have been transferred to another physician or Pinch (Litigation guardian of) v. Morwood Dillon J. 43

to the maternity ward. He said that Natasha should have been screened for proteinuria. 64 According to consensus guidelines for management of pregnant women prepared by the Society of Obstetricians and Gynaecologists of Can- ada which Dr. Feinstadt acknowledged were in use, a blood pressure of systolic equal or greater than 140 and a diastolic of equal to or greater than 90 is diagnostic of hypertension which is one indicia of preeclampsia, along with proteinuria and adverse conditions. Dr. Feinstadt was of the view that hypertension alone could be diagnostic of preeclampsia, a position not supported in the consensus guidelines. Dr. Feinstadt said that a blood pressure approaching this upper limit could not be ignored. He also said that patients with proteinuria but without hypertension could still have preeclampsia. Therefore, if hypertension were ruled out through a normal blood pressure, the urine would still have to be checked for proteinuria. Dr. Feinstadt was of the view that the guidelines require all pregnant women to be screened for proteinuria through urinalysis regardless of whether she is hypertensive. A pregnant patient in emergency should have had her urine tested for proteinuria, usually initiated by the nurse. 65 The expert was aware that Nurse Barcelonne and Dr. Morwood had worked together frequently and that Barcelonne was an experienced maternity nurse. He was aware that Barcelonne had said that she had taken the vital signs of Natasha but was then interrupted by another patient before she could complete her charting of the results. He agreed that a cardiac arrest alarm in emergency required immediate attention by emergency personnel. When presented with the chart of the patient to whom the nurse attended immediately, interrupting her assessment of Natasha, Dr. Feinstadt agreed that this patient warranted priority. Dr. Feinstadt said that a competent emergency room nurse would have documented the patient’s complaints and presentation and carefully and accurately measured and recorded all vital signs, particularly blood pressure. He said that if the nurse was interrupted, she should have gone back “once the dust settl[ed]” and completed the assessment including re-checking the blood pressure to ascertain exactly what it was and obtaining a urine test. If the doctor had taken over the assessment in the meantime to the knowledge of the nurse, then the doctor should have completed the assessment and repeated the blood pressure to get another reading and documented that reading. Dr. Feinstadt said that if the doctor discharged the patient and signed off on the chart, then he had assumed responsibility for the assessment. 44 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

66 If Dr. Morwood was told by the nurse that “all vital signs were normal” or that “blood pressure was normal”, this was inadequate in the circumstances of a pregnant patient according to Dr. Feinstadt. Dr. Morwood should have been provided with an actual numerical blood pressure. Also, a verbal statement was inadequate, except temporarily in emergency situations. When Dr. Morwood noticed that the blood pressure had not been recorded, he should have insisted that it be recorded so that he could come to a reasonable assessment. Dr. Feinstadt testified in cross-examination that the nurse’s responsibility to take and record vital signs does not relieve the doctor of responsibility to review the results and ensure that they are on the chart and available. He also said that confirmation between doctor and nurse that the blood pressure had been normal after the patient had left and upon noticing that there was a blank in the chart for blood pressure would not be reasonable. Instead, the blood pressure reading should have been repeated. Dr. Feinstadt said that the doctor who dischargers a patient must ensure that all of the vital signs are recorded prior to discharge and signing off on the chart.

(b) Dr. Pierre DuPlessis 67 Dr. DuPlessis is a specialist in obstetrics and gynaecology who practised at the Powell River General Hospital in 2011. He was chief of obstetrics and gynaecology and was frequently called into the emergency department of the hospital by the physician on general emergency duty to respond to pregnant patients. He was familiar with the practices and procedures at the hospital. He knew Dr. Morwood and Nurse Barcelonne. He was not called to the hospital and had no involvement in the plaintiff mother’s care on November 5, 2011. He was called into the hospital on November 7, 2011 to attend to Natasha after her eclamptic seizure. 68 Dr. DuPlessis was qualified to provide an opinion as to causation and as to the standard of care of a general practitioner in the position of Dr. Morwood in the emergency department at the relevant time. 69 Dr. DuPlessis was a modest, honest, and reliable clinician. He recognized Drs. Farquharson and von Dadelszen as academics and researchers in the field of hypertensive disorders in pregnancy. He specifically did not get involved in the debate between these two experts about the most likely way that Natasha presented on November 5. Dr. DuPlessis said that he would defer to Dr. von Dadelszen as a world leader in this area. Dr. DuPlessis’ opinion was based upon his knowledge as a clinician, rather than upon academic or statistical opinion. Pinch (Litigation guardian of) v. Morwood Dillon J. 45

70 Dr. DuPlessis said that, if he had been called on November 5 and advised that Natasha had neck pain, he would have evaluated further with particular concern to establish whether the pain radiated to her head. In coming to this opinion, Dr. DuPlessis did not assume that there was neck pain reported around the head: he would have elicited information as to whether or not it did. He did not know that Natasha had asked what she could take for neck pain because she knew that she could not take anti-inflammatories. He would not have been expected to be called if the vital signs were normal and the plaintiff complained only of neck pain. However, he would have been concerned about preeclampsia if the patient had reported that her neck pain did not respond to over the counter analgesics such as Tylenol. In cross-examination, Dr. DuPlessis said that if Natasha had reported that she had taken analgesics, he would have been concerned. But, he also agreed that Tylenol is often not helpful in dealing with neck pain and he would accept the family physician’s assessment when it came to neck pain only. 71 Dr. DuPlessis said that he expected that Natasha would have had all of her vital signs taken and a urinalysis done to check for protein in her urine. If there was anything abnormal in these results, he would have been consulted. The doctor did not go so far as to suggest that every 28- week pregnant patient who presents in the emergency department should undergo urinalysis or a full prenatal assessment. Given Dr. DuPlessis’ answers here, it is assumed that if the attending doctor had elicited that the pain radiated to the head and especially if the head pain had not responded to analgesics, Dr. DuPlessis would have expected a urinalysis to be done. This was confirmed when he answered in cross-examination that he would defer to the attending physician if the physician in the emergency department came to the clinical judgment that further examination by way of urinalysis or full antenatal assessment was not required because the pregnant patient presented with neck pain that was consistent with a previous history of neck pain. 72 Dr. DuPlessis said that, based upon his experience and his knowledge of Natasha’s condition on November 7, 2011, it was more likely than not that Natasha had elevated blood pressure on November 5 and that her urinalysis and blood work results would have been abnormal and sugges- tive of preeclampsia. He agreed with Dr. von Dadelszen, however, that preeclampsia can evolve over hours to days to weeks. Dr. DuPlessis had also concluded, after reading the prenatal charts of Natasha’s family practitioner, that Natasha’s vitals had always been normal without hypertensive episodes. He did not know, because it had not been noted, that 46 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

Natasha’s blood pressure had been elevated at the last prenatal visit. If it had been known on November 5 that Natasha had hypertension, Natasha would have been admitted to hospital for treatment of hypertension and transferred to a tertiary care centre for delivery of her 28-week gesta- tional baby.

(c) Dr. Duncan Farquharson 73 Dr. Farquharson is a medical specialist in obstetrics and gynecology with a sub-specialty in perinatology. He specializes in high risk obstetrics. He has extensive experience with patients with preeclampsia and is familiar with the pathophysiology of preeclampsia. He knows the expert, Dr. Peter von Dadelszen, because Dr. von Dadelszen completed his training with Dr. Farquharson and the two doctors have co-authored peer reviewed papers together. 74 Dr. Farquharson reviewed all of the plaintiff mother’s prenatal records, as well as the hospital records for November 5 and 7, 2011. He also reviewed certain of Rebecca’s records. Noted in the prenatal records was that, at 21 weeks gestation, Natasha showed “persistently elevated blood pressure . . .and protein. . .in the urine”. In a later prenatal visit at 25 weeks, to her new family physician as described above (paragraph 3), her urine was negative but blood pressure was not recorded. Dr. Far- quharson’s review of the hospital record of November 5, 2011 led him to assume that “blood pressure and urinalysis were never performed and recorded” and no attempt was made to examine the pregnancy. He did not assume based upon the facts in the chart that Natasha’s blood pressure was normal on November 5. 75 Based upon significant metabolic acidosis, indicated by the high levels of lactic acid when Rebecca was born, Dr. Farquharson concluded that Rebecca suffered severe oxygen deprivation prior to birth. This per- inatal insult was associated with maternal seizures and hypoxemia in the mother. Based upon Rebecca’s relatively uncomplicated progress after birth, Dr. Farquharson concluded that the hypoxic injury occurred prior to birth, likely as a result of asphyxia caused by recurrent maternal seizure activity. The doctor reported that, “without doubt”, Rebecca sustained significant hypoxic injury during the course of Natasha’s convul- sions and seizures on the morning of November 7. 76 With respect to the likelihood of predicting Natasha’s “severe preeclampsia”, Dr. Farquharson referred to the work of Dr. von Dadelszen which established a protocol to predict the risk of preeclampsia. Dr. Far- Pinch (Litigation guardian of) v. Morwood Dillon J. 47

quharson said that preeclampsia begins at an early stage in pregnancy and can result in significant elevation in maternal blood pressure, cerebral edema leading to seizure, and proteinuria. Routine antenatal visits before 28 weeks gestation are generally one month apart such that a woman who develops preeclampsia may not have her blood pressure and urinalysis assessed routinely within one week of the onset of seizures. There were “subtle indications” that Natasha’s blood pressure was not normal even early in her pregnancy. Dr. Farquharson said that “virtually all patients who suffered eclampsia would have presented with significant hypertension, proteinuria and other adverse features if this assessment had been carried out within 48 hours of the onset of seizures” as was the case for Natasha. He said that it was a chronic condition that is impossible to diagnose correctly without assessment of blood pressure. Based upon British studies relied upon by Dr. von Dadelszen, Dr. Far- quharson said that 90% of patients presenting with eclampsia would have had hypertension, proteinuria or both prior to the onset of seizures. The doctor said: We must therefore turn [our] attention to the prenatal care and the likelihood of predicting Natasha’s severe preeclampsia. ... I have no doubt that if Natasha’s blood pressure and a simple urinalysis had been performed at the time of her visit [November 5, 2011], then hypertension and proteinuria would have been discovered, leading to an entirely different set of circumstances with likely transfer of mother to a tertiary center for further assessment and care and delivery of baby Rebecca prior to the onset of maternal seizures. 77 An assessment including blood pressure and urinalysis would have made the diagnosis obvious and averted the series of events that followed. 78 Further, with respect to the hospital visit on November 5, Dr. Far- quharson said that it was very unusual not to have a complete set of vital signs performed and recorded in an emergency department. Severe preeclampsia does not “appear overnight”. He concluded that the blood pressure was not recorded in this case. As to whether it was taken, he could only say that Natasha would have had elevated blood pressure and proteinuria and other adverse features when she was in hospital on the morning of November 5. He made this conclusion based upon the details of Natasha’s presentation two days later and upon the fact that Natasha presented on November 5 with symptoms that could have been preeclampsia and never had a blood pressure documented. He did not think 48 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

that her blood pressure could have been normal at the time of the emergency visit. While he agreed in cross-examination that a certain percentage of women can present 48 hours out from seizure without hypertension, the evidence suggesting that Natasha’s disease was chronic was extensive and she had evidence of other systemic organ dysfunction at the time of her seizures that would have pre-dated the emergency visit on November 5. These other dysfunctions were evident from the fact that Rebecca was underweight at birth despite being normal size at 20 weeks gestation and from the “massive proteinuria, elevated creatinine and elevated uric acid” on November 7. Ignoring the factor of Rebecca’s birth weight because whether she was underweight was contested, Dr. Far- quharson said that these other changes could not happen over 48 hours. The elevated creatinine and uric acid levels were determined from blood testing at the time of Natasha’s seizure. Dr. DuPlessis concluded that these readings would have provided warning of preeclampsia had they been done earlier. 79 On cross-examination, Dr. Farquharson did not agree with the suggestion from a British study that 44% of eclampsia cases do not show proteinuria or hypertension in the week before seizure. He said that it was not known when the women were seen in that week and 21% of the subjects did not have the necessary evaluation carried out in that week. He agreed that the report said that 52% of the women did not have hypertension in the week before seizure. He also agreed with an earlier study that said that eclampsia may present “unheralded by warning signs”. De- spite the statistical possibility of a patient having no warning signs, which Dr. Farquharson acknowledged was a small percentage in the Brit- ish report and was larger but still a minority in a small American study, he said that most patients would have had features of hypertension or proteinuria and the presentation of Natasha with severe hypertension and proteinuria on the day of her seizures indicated the chronic nature of her condition. He concluded that her blood pressure must have been high on November 5. He repeated that the eclampsia would not have taken place if her blood pressure were monitored on November 5.

(d) Dr. Peter von Dadelszen 80 Dr. von Dadelszen is a specialist in obstetrics and gynaecology with a doctorate of science obtained for the study of the mechanism of preeclampsia. He is acknowledged to be a world leader in hypertensive disorders in pregnancy. He is extensively funded for preeclampsia research and is presently based in London, England. He was qualified to provide Pinch (Litigation guardian of) v. Morwood Dillon J. 49

an opinion to the court with respect to the standard of care in the presentation and pathophysiology of preeclampsia and eclampsia in relation to this case. 81 In his report, Dr. von Dadelszen reported that the plaintiff mother had specific risk factors for hypertension in her pregnancy. Early onset preeclampsia is preeclampsia first diagnosed before 34 weeks of pregnancy, so Natasha had early onset preeclampsia by definition. He agreed with Dr. Farquharson that Natasha’s prenatal record suggested that her blood pressure had not been in the completely normal range and could be pre- dictive of the subsequent development of preeclampsia, but said that a family doctor working in emergency would not have been expected to have access to this record. 82 Generally, women with preeclampsia present with high blood pressure and proteinuria and are screened for this during the pregnancy. However, uncommonly, women will present with one or none of these indicators. The majority will not have both hypertension and proteinuria detected before experiencing eclampsia. 83 Dr. von Dadelszen said in his report that preeclampsia can evolve over hours, to days, to weeks into a life threatening disorder. He reported the results of a British study in which 44% of women had neither of the classic symptoms of hypertension nor significant proteinuria detected during the week before their first seizure. Thus, preeclampsia can evolve without detection and present as a sentinel diagnostic event in a significant minority of patients. Dr. von Dadelszen disagreed with Dr. Far- quharson’s opinion that preeclampsia is not a disorder that can appear overnight. Dr. von Dadelszen stated: “Assuming that the blood pressure was measured to be normal on 5 November, then the pattern of presentation with eclampsia is neither unanticipated nor incredible”. He also said that Natasha’s blood test results after she suffered seizures were equally consistent with a process that could have occurred over weeks or over hours. 84 Dr. von Dadelszen assumed that Natasha’s blood pressure was measured and was normal on November 5, 2011. In that circumstance, Dr. Morwood’s assessment and diagnosis was “reasonable in a woman with a well-established history of recurrent neck pain and high computer use”. 85 The doctor described the expectant management that would have occurred had Natasha been diagnosed with preeclampsia on November 5, 2011. Rebecca would likely have been born prematurely but with a significant chance (86.7%) of intact survival. 50 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

(e) Dr. Helmut Mark 86 Dr. Mark is a family physician whose practice included obstetrics until 2008. Dr. Mark also practised emergency medicine until 2006 at a regional hospital through weekly shifts when there were no other emergency physicians on duty. He was qualified to provide an opinion in the area of family practice and emergency medicine. 87 Dr. Mark said that when a pregnant patient attends in emergency with a complaint seemingly unrelated to her pregnancy, the emergency room physician is not expected to conduct a full assessment of her pregnancy. He did not opine on the appropriate questions to be asked to learn whether an apparently unrelated complaint might, in fact, be pregnancy related so to require further investigation, and he did not indicate what less than full assessment was appropriate in the circumstances of a pregnant patient. However, upon cross-examination, the doctor agreed that a patient may not recognize a sign or symptom as related to the pregnancy and said that the physician needs to exclude issues related to the pregnancy, so a fuller history is expected to be taken. He initially said that there has to be “some feeling on the physician who is doing the work that there is not an issue with the pregnancy” but agreed that an investigative process has to be undertaken. The investigation to ascertain that the problem is not related to the pregnancy includes a review of the nursing assessment, taking a history, doing a physical examination, and performing appropriate tests. 88 Dr. Mark was of the opinion that Dr. Morwood took an adequate history and conducted a reasonable examination of Natasha during her emergency room visit on November 5, 2011. He based this opinion on details of specific questions asked about the pregnancy that were not all established in evidence and some detail was from nursing notes which Dr. Morwood had not reviewed prior to attending upon Natasha. Dr. Mark said that Dr. Morwood’s diagnosis of neck strain correlated with the history, the complaint, the signs and symptoms and the examination. Dr. Mark was of the opinion that the history and symptoms of musculoskeletal neck pain were “straight forward”. This was based upon an assumption that the blood pressure was taken and was normal and that there was no pain radiating into the head. He had not commented upon and did not include in his report the need for an examining physician to ask questions related to radiation or extension of the pain except for the assumption that Dr. Morwood had elicited that there was no pain in the left arm. Dr. Mark considered it fundamental to his opinion that the pa- Pinch (Litigation guardian of) v. Morwood Dillon J. 51

tient complained of pain near the base of the neck on the left side. Dr. Mark said that left sided neck pain is not a symptom of preeclampsia and further investigation related to the pregnancy was not warranted, especially in the emergency department. He did not consider it significant that Natasha had taken Tylenol without success. In cross-examination, Dr. Mark agreed that it was important to find out whether the pain was radiating into or around the head. If Natasha’s pain had extended into her head, then there was a diagnostic possibility of preeclampsia and she should have been assessed for preeclampsia. 89 Based upon the information that Dr. Morwood had trust and confi- dence in Nurse Barcelonne and that Barcelonne had informed Dr. Morwood that the vitals were normal, and on the assumption that the nurse had done a full assessment, Dr. Mark stated that “it would be unusual for the physician to repeat the vital signs unless the patient’s complaint revolved around the cardiovascular system”. Generally, physicians do not question blood pressures done by nursing staff and they accept a verbal report that blood pressure is normal. It was not necessary to have the exact numbers if the doctor knew the nurse to be experienced and competent in obstetrics. Dr. Mark did not say whether the practitioner should check either again with the nurse or independently when the blood pressure is not recorded and other vital signs are. If the vitals have not been done, then the physician should ensure that they are done either by taking the vitals himself or making sure that the nurse does them.

(f) Dr. John Van Aerde 90 Dr. John Van Aerde, a neonatologist, provided an opinion with respect to the nature of the brain injury suffered by Rebecca. His report was in evidence but he was not called for cross-examination. 91 Dr. Van Aerde summarized the clinical and other records that he reviewed. He said that Natasha developed undiagnosed eclampsia resulting in seizures of unknown duration. Rebecca suffered severe damage to her brain and upper brain stem. As a result, she has quadriplegic cerebral palsy with global development and cognitive delay. The brain lesions that Rebecca has are infrequently seen in preterm infants but look like hypoxic ischemic encephalopathy caused by an acute, profound event, such as maternal seizures that suddenly and almost completely dropped the oxygen and blood supply to the fetus. The doctor said that placental pathology indicated placental damage due to maternal hypertension but also said that any effect here was small as compared to the major insult 52 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

that occurred during maternal seizures. Dr. Van Aerde concluded that it was highly probable that Rebecca would have developed into a neuro- logically normal child absent the acute event of maternal seizures.

(g) Shannon Lapsley 92 Shannon Lapsley (Lapsley) qualified as a registered nurse and obtained her emergency specialty diploma in 2005. She has worked the majority of the time in emergency nursing since then, including in rural hos- pitals. She is familiar with the assessment and monitoring of patients in the emergency department. She is experienced with the MP50 monitor. Lapsley is a professional nursing expert who set herself up in 2010 to consult with lawyers on standards of nursing. She had the minimum qualification of five years’ experience before she took a course on legal nurse consulting to enable her to start her business as an expert witness. Lapsley was qualified to testify to the standard of care to be met by an emergency room nurse in a rural hospital. 93 Among the assumptions in Lapsley’s report was that, if asked to describe her pain, Natasha would have said that it was on the left side and radiated to the base of her skull and up to her ear. She also assumed that Barcelonne considered a diagnosis of preeclampsia and was aware of the symptoms and complications of preeclampsia. 94 Lapsley reported that Barcelonne failed to complete a prudent assessment of Natasha on November 5, 2011. She characterized Barcelonne as both the triage and primary nurse on that day. In order to triage Natasha at level 4, Barcelonne was required to perform both a subjective and an objective assessment. Subjectively, Barcelonne should have asked questions to identify the source and type of the pain. More particularly, she should have asked about radiation of pain. This would have elicited the response described in the assumptions, which Lapsley said indicated head as well as neck pain and was significant information because headache is a symptom of preeclampsia. Objectively, based upon the assumption of headache or other indicia of preeclampsia, Lapsley said that Barcelonne should have collected a urine sample and measured vital signs. There was sufficient time to do so. Although a urinalysis is not always warranted, Lapsley said that it is common for a pregnant woman, especially when there are indicia of preeclampsia. 95 Assuming that Barcelonne took the blood pressure, Lapsley said that documenting it takes only a few seconds. Normally, the blood pressure or temperature is the last vital sign to be recorded. It takes about a minute Pinch (Litigation guardian of) v. Morwood Dillon J. 53

to take the blood pressure, during which time other information can be obtained such as current medications in use. If the nurse did not have time to document in that moment, she should have returned and completed the documentation as soon as possible. If the blood pressure was on the high end of normal, then Barcelonne should have asked more questions to elicit whether there had been higher blood pressures in the past. Lapsley said that relying on the MP50 monitor to recall, document, and communicate vital information such as blood pressure to physicians and other health care providers is below the standard of care because it can be erased, especially at triage in an emergency department where the monitor is not patient specific. If Barcelonne was called away from triage, she should have scribbled the information on a piece of paper for later retrieval. If she had not written the information somewhere and if the monitor at triage had not stored the information, then Barcelonne should have taken the blood pressure again. If Barcelonne went to retrieve the information from the monitor but it was erased, she should have documented that fact. If Barcelonne had communicated to Dr. Morwood that the vital signs were normal, she should also have documented that fact and noted the circumstances that pulled her away from Natasha. The doctor in that circumstance would usually have asked what was normal so the nurse would be expected to provide a specific number. However, the team environment and familiarity between doctor and nurse may mean that only abnormal results are significant such that a doctor might reasonably rely upon a nurse’s advice that the vitals were normal. If the nurse was unable to complete her assessment before the patient was discharged, she should also have documented that fact. 96 Assuming that Barcelonne did not take Natasha’s blood pressure, then she failed to meet the expected standard of care because a blood pressure is mandatory before an appropriate triage level can be assigned. Because Natasha was pregnant, a blood pressure reading was even more important and could have prompted further questions. The failure of an experienced nurse to take a blood pressure was acknowledged by Laps- ley to be shocking because it is one of the first things nurses are taught to do. 97 Lapsley said that Barcelonne failed to complete a prudent triage assessment according to the CTAS. Barcelonne’s assignment of level 4 meant that Natasha had less urgent symptoms and stable vital signs such that she could have waited up to 60 minutes to see a doctor. To perform this assessment, Barcelonne would have had to ask about radiation of 54 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

pain and the pain scale. Lapsley said that Barcelonne failed to assess blood pressure before assigning a CTAS score. 98 Lapsley reviewed the charts of all patients in the emergency at Powell River General Hospital from 7:00 p.m. to 8:00 a.m. on November 4-5 and concluded that the emergency department was not busy. If Nurse Barcelonne was interrupted by another patient, Lapsley said that she could have referred Natasha to the maternity department or to another nurse to complete the assessment, or Barcelonne could have completed the assessment herself. Based upon information from the record of the bradycardia patient, Lapsley said that Barcelonne could have safely, eas- ily and quickly completed the assessment and documentation for Natasha. 99 Lapsley’s review of the charts of all six patients in emergency during the shift of 7:00 p.m. to 8:00 a.m. on November 4-5 revealed that four out of the six did not have their blood pressure documented at triage, including Natasha. 100 Lapsley testified that nurses often chart “after the fact” and said that it is acceptable to chart later in the shift. In this case, Lapsley said that Barcelonne failed to chart critical information including not only the blood pressure, assuming that it was taken, but foetal movement, anti- inflammatory medications, history of similar neck pain, radiation of pain, presence of visual changes, and whether or not pain was relieved with medication. 101 In cross-examination, Lapsley was asked to assume that the patient only reported neck pain and that the nurse completed a proper assessment. In that circumstance, Lapsley agreed that a reasonable nursing judgment would be that the patient just had neck pain. 102 An important aspect of Lapsley’s evidence was demonstration of the MP50 monitor through a video recording that was entered into evidence. The monitor has different functions and modes of operation. It can be connected to the hospital network but in the triage area it usually is not connected. It can be custom configured but has standard modes of operation. It can be configured so that the beeping alarm gets louder as the time during which it is not acknowledged increases. A beeping sound indicates that something is not connected or there is a technical problem. The monitor screen indicates heart rates, oxygen saturation and blood pressure, which the nurse typically documents in the patient’s chart. If the blood pressure reading is not completed, it will not show a number on the screen and a technical alarm will sound before the monitor recycles Pinch (Litigation guardian of) v. Morwood Dillon J. 55

again with inflation and deflation of the blood pressure cuff, assuming that the nurse has put the cuff on. Once a reading is obtained, the cuff remains deflated unless the monitor is set for automatic readings at specific intervals, a setting unlikely in a triage area. The blood pressure reading remains on the screen once obtained whether or not the cuff is removed or other information is obtained. 103 There are three ways to turn the monitor off, the first two of which do not erase the data. The MP50 can be put into “monitor standby” whereby the operator presses the screen and the monitor is put in standby, a beeping sound is heard and then stops, and the data is not erased but can be recalled. The second method is to push a button at the base of the monitor. The screen will be turned off but it is turned back on by pressing the button again and the data takes a few seconds to come up but is not erased. The screen could be off for as much as two hours and still retain the data in this circumstance. To turn the monitor off in such a way as to have the data erased, the operator must hit the end case button on the screen and then the monitor asks whether the operator wants to confirm, including erasing data. The operator must then push the confirm button again before the monitor is turned off and patient data erased. The machine can be turned off altogether finally by pushing a button on the right hand side of the machine. This button is not on the face of the screen. 104 Based upon this information, it can be concluded that Nurse Riggs turned off the monitor by the second method such that the data pertinent to Natasha, particularly the blood pressure, would not have been erased if it had been taken.

(h) Katherine Kennedy 105 Katherine Kennedy (“Kennedy”) was qualified as an expert on the standard of care for a registered nurse in an emergency room in a rural hospital in British Columbia. She had been working as a registered nurse since the 1990s including 16 years at St. Paul’s emergency department in Vancouver. She obtained her Master’s of Nursing in 2006. She has an advanced certificate in emergency room nursing and presently teaches emergency room nursing at the British Columbia Institute of Technology whilst maintaining casual work in a rural emergency setting to maintain her currency. 106 For purposes of an expert opinion, Kennedy assumed that Barcelonne completed the admission forms for Natasha in the triage area, took her vital signs, and triaged her at CTAS level 4. Blood pressure was taken 56 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

and the reading displayed on the monitor was mentally noted by Barcelonne to be normal but she did not have time to document the blood pressure because she left Natasha to assist with the resuscitation of the bradycardia patient. Kennedy assumed that Barcelonne was aware that she could go back to the monitor later to retrieve the blood pressure readings. 107 Kennedy assumed that there was a conversation between Morwood and Barcelonne before Morwood attended to Natasha in which Barcelonne said that Natasha presented with neck pain, two days in duration, that she was 28 weeks pregnant, that her vital signs were normal, and that she wanted to know what was safe to take for her neck pain during pregnancy. She also assumed that Morwood relied upon this information. 108 Kennedy assumed that Barcelonne noticed that she had failed to document the blood pressure when she reviewed her charting at the end of her shift and returned to the triage area to access the stored information on the monitor but found it turned off. Nurse Riggs told Barcelonne that she had turned off the monitor because it was beeping. Because the monitor had been turned off, the history of Natasha’s blood pressure could not be retrieved because the readings were lost. She also assumed that the beeping was from the indicator that the last set of vital signs had been taken and that the monitor was no longer connected to the patient. 109 As part of the triage assessment, Kennedy said that the subjective assessment includes standard questions related to pain including location, type, timing, associated symptoms, activity at the time, and whether the pain radiates anywhere. Objective assessment includes appearance, degree of distress, emotional response and the taking of vital signs “if time permits”. Based upon the assumption that blood pressure had been taken, Kennedy concluded that Barcelonne performed an appropriate triage assessment. She said that the initial triage assessment occurs before the patient is placed in a chair or bed and that a more detailed primary nursing assessment then occurs. However, Kennedy also said, in reply and explanation to Lapsley’s opinion that Barcelonne should have assessed and documented both subjective and objective findings but failed to do so, that Barcelonne could have expected to do a more thorough primary assessment of Natasha after she had been placed in a bed. But since she was seen by a doctor in the meantime, there was no further nursing assessment necessary. Kennedy said that the initial assessment in the triage area did not demonstrate enough reason to request a urinalysis, although Pinch (Litigation guardian of) v. Morwood Dillon J. 57

the more thorough assessment at the bedside may have revealed the need for such testing. She said that Barcelonne delegated the nursing assessment to the physician in the circumstances of Barcelonne caring for another patient. In effect, Kennedy acknowledged that Barcelonne failed to perform or to document an appropriate nursing assessment of Natasha but was excused because Dr. Morwood intervened in her care and it was not necessary for Barcelonne to assess further in this circumstance. She said that, if the nurse had not completed her assessment, she would normally relay this information to the doctor even though the doctor would perform his own independent assessment. 110 On the assumption that blood pressure had been taken, Kennedy said that it was appropriate for Barcelonne to attend to the bradycardia patient without documenting blood pressure due to the urgency of the other patient. She did not comment upon the fact that Barcelonne testified at first that she had time to document the triage level which had to be documented after all vital signs had been taken. 111 Kennedy said that it was common to rely upon the memory in the monitor to retrieve vital sign information later for purposes of documentation. Although in her report Kennedy assumed the nurses used a different monitor than they actually used, she said in her direct examination that there was no difference in the monitors except that “the buttons might be in different places”.

Findings on Credibility 112 In assessing credibility, reference has been had to the test set out in Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C. C.A.) at 356-357 and to the principles described in Bradshaw v. Stenner, 2010 BCSC 1398 (B.C. S.C.) at paras.186-187, aff’d 2012 BCCA 296 (B.C. C.A.), leave to appeal to S.C.C. refused 2013 CanLII 11302 [2013 CarswellBC 549 (S.C.C.)] (Bradshaw), the specifics of which are well known and need not be set out here. In assessing the evidence from both Dr. Morwood and Nurse Barcelonne and given the time to trial from November 5, 2011, care has been given to afford considerable weight as to his and her usual practice in deciding how each acted on the day in question (Belknap v. Greater Victoria Hospital Society (1989), 64 D.L.R. (4th) 452 (B.C. C.A.) at 465-466; Campbell v. Roberts, 2014 ONSC 5922 (Ont. S.C.J.) at para. 100 (Campbell)). While inferences may be drawn from standard practice, they do not compel it (Gemoto v. Calgary 58 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

Regional Health Authority, 2006 ABQB 740 (Alta. Q.B.) at para. 364 (Gemoto)). 113 Documentary evidence prepared at the time of events is generally helpful in providing an accurate reflection of what occurred (Bradshaw at para. 188). In this case, it is important to be clear about the use that can be made of the fact that blood pressure was not charted. The lack of charting gives rise to a credibility issue as to whether Barcelonne did take Natasha’s blood pressure. This lack of charting does not mean that Barcelonne did not take the blood pressure and is not prima facie evidence of negligence. However, the absence of charting permits an inference that correct steps were not taken when it is incumbent upon a nurse to accurately chart results (Fullerton (Guardian ad litem of) v. Delair, 2005 BCSC 204 (B.C. S.C.) at para. 175, var’d on other grounds 2006 BCCA 339 (B.C. C.A.) (Fullerton); Sozonchuk v. Polych (2012), 2011 ONSC 842 (Ont. S.C.J.) at para. 91, aff’d 2013 ONCA 253 (Ont. C.A.) (Sozonchuk); Meyers (Next Friend of) v. Stanley, 2003 ABQB 468 (Alta. Q.B.) at para. 41, rev’d on other grounds 2005 ABCA 114 (Alta. C.A.), leave to appeal to S.C.C. refused [2005] 2 S.C.R. ix (note) (S.C.C.). As stated in Skeels Estate v. Iwashkiw, 2006 ABQB 335 (Alta. Q.B.) at para. 112: 112 The lack of charting does not necessarily mean that procedures were not conducted, nor is the mere lack of charting prima facie evidence of negligence in the treatment. However, the lack of charting makes it more difficult for a court to determine matters of credibility where individuals who are trained to chart, did not do so. This failing, despite the opportunity to do so, makes it harder for a court to accept that the correct steps were followed and appropriate procedures were done as it would have been logical for them to be recorded had they been done: Kolesar v. Jeffries (1974), 59 D.L.R. (3d) 367, 9 O.R. (2d) 41 (Ont. H.C.J.). aff’d [1978] 1 S.C.R. 491. 114 Gemoto involved the failure of a doctor to chart the taking of vital signs. The evidentiary implication of this failure was discussed at para. 100: 100 The law accords a special status to contemporaneous chart entries as business records. Hospital records, including physicians’ and nurses’ notes, can be received in evidence as prima facie proof of the facts stated therein: Ares v. Venner, [1970] S.C.R. 608 at 626. The case law allows a Court to conclude that the absence of contemporaneous chart entries at crucial points permits the inference that nothing was charted because nothing was done: Joseph Brant Memorial Pinch (Litigation guardian of) v. Morwood Dillon J. 59

Hospital v. Koziol, [1978] 1 S.C.R. 491. This is not a rule of law or an automatic conclusion: it is an inference which may only be drawn if supported after a careful weighing of all the evidence. 115 The plaintiff mother was a calm and credible witness. There was no reason for her not to have told the nurse and doctor who attended to her on November 5, 2011 everything that they asked. She would have been as forthright and frank, candid and truthful, as she was in her testimony. Her recollection of events was relived relatively soon after November 5. 116 An example of the plaintiff mother’s specific memory is her recollection that she remained at all times in the triage area and never went to the “eye room”. She knew that room from previous visits there when her husband had damaged his cornea and knew it was right next to the triage area where she was. She said that she did not change her location after being directed to the triage area by Barcelonne. Her evidence is consistent with the outpatient registration record which states that Natasha was on stretcher 5 which was acknowledged to be in the triage area. It is also consistent with the evidence of Barcelonne who described that she triaged Natasha in the triage area and left her there when she went to attend to another patient. Her evidence that she saw Natasha go into the eye room with Dr. Morwood through the curtains surrounding stretcher 4 is not believable. Natasha’s recollection is also consistent with the location of the monitor as described by Barcelonne and Nurse Riggs and with Riggs’ memory that she may have seen Dr. Morwood with Natasha in the triage area. Dr. Morwood said that he believed that he saw Natasha in the eye room. He said that it would have been unusual to have seen her in the triage area which was used for minor matters, although it was possible, and there was a gurney there. He was not asked whether he brought Natasha from the triage area to the eye room. In this regard, the specific memory of Natasha is preferred as she had a reason to remember the eye room from a previous visit with her husband, she spent over an hour in the one room, she did not change rooms from where she was directed by Barcelonne, the chart record as written by Barcelonne located Natasha in the triage area, and the monitor that was later turned off by Riggs causing Barcelonne to be upset was located in the triage area. 117 The plaintiff mother was reasonably specific about the time that she arrived at the hospital and the time that she returned home. These times correlate reasonably to the times noted in her chart as presenting in emergency at 5:15 a.m. and being discharged at 7:30 a.m. This latter time was written in by a clerk at a later time and was agreed not to be reliable because nobody actually noted when the plaintiff mother left the hospi- 60 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

tal. The plaintiff said that she had returned home by 7:20 a.m. so must have left the hospital around 7:00 a.m. After her discharge, Dr. Morwood had noted the time of his examination of Natasha to have been at 5:50 a.m. This was an estimated time based upon when the bradycardia patient would have stabilized sufficiently so that Dr. Morwood could leave her and Nurse Barcelonne could return to the nursing station. This could actually have been as late as 6:00 a.m. If so, then the plaintiff mother’s estimated time of discharge is not too far off and relates to waiting time without attendance of hospital personnel. 118 A key issue on timing, however, is when Barcelonne assessed Natasha and whether her assessment was interrupted by the alarm of the bradycardia patient. The plaintiffs took the position that Barcelonne assessed Natasha after the bradycardia patient had stabilized, so around 6:00 a.m. as recorded by Barcelonne on Natasha’s chart. The defendant hospital took the position that Barcelonne assessed Natasha between 5:15 and 5:30 but was interrupted by the bradycardia alarm. Natasha testified that a commotion in another bay in emergency occurred about 20 or 30 minutes after she arrived. The lower estimate seems to be roughly accurate given that Natasha was recorded to have arrived at 5:15. Natasha said that the commotion happened after she had checked in with Barcelonne at the desk but before she was assessed by Barcelonne. She said that she then waited between 40 to 50 minutes before Barcelonne came to her, so she would have been assessed around 6:15. This recollection does not accord with any of the documented times or the recollection of Barcelonne or Dr. Morwood. Barcelonne said that she returned to the triage area to obtain Natasha’s vital signs but was interrupted by the bradycardia patient at 5:30 and did not return to Natasha at any time. Dr. Morwood did not attend to Natasha until the bradycardia patient had stabilized which was nearer to 6:00. The memory of Barcelonne is preferred here because it accords with the preponderance of the evidence. How- ever, an error as to whether the assessment by the nurse was before or after the commotion does not undermine the plaintiff’s general credibility. Whenever the nursing assessment took place in relation to the alarm of the bradycardia patient, Natasha’s evidence that Barcelonne took about five minutes to assess her is accepted. 119 Barcelonne based her recollection of the plaintiff mother’s assessment upon her recollection of the bradycardia patient whom she knew before from previous episodes. She then reconstructed backwards to remember seeing Natasha enter the emergency, to remember that she was pregnant, to remember that she was complaining of a sore neck and Pinch (Litigation guardian of) v. Morwood Dillon J. 61

needed to know what she could take for it, and to remember that Barcelonne was interrupted in her dealings with Natasha. Her memory was refreshed several years later when she was asked to review the chart. 120 Barcelonne’s recollection of conversations with Dr. Morwood about Natasha is poor. She could not remember the words spoken or where the initial discussion took place. She said that she told Dr. Morwood that Natasha complained of a “sore neck”. She suggested that she specified certain vital signs, including blood pressure, as normal. Barcelonne also said that she had a second conversation with Morwood when she was completing her charting regarding Natasha. She testified that Dr. Morwood asked her about the missing blood pressure reading and that he asked whether it had been normal. This is contrary to Dr. Morwood’s testimony that he did not notice that the blood pressure reading was not documented until afterwards when he went back to the chart several days later. He testified that he would have remembered if he already knew that the blood pressure had not been documented. Although he was equivocal about having another conversation with Barcelonne, he testified, and I accept, that it would have been unlikely for him to have asked again whether the blood pressure reading was normal if he had been told before and relied upon that information. It is also unlikely that the conversation would have been so limited if he had noticed that the blood pressure reading had not been documented and if Barcelonne was as upset about it as Riggs suggested. It is concluded that this second conversation did not occur and that Barcelonne is mistaken about it. 121 Barcelonne’s memory of events is unreliable for other reasons. Her notation of times on the chart was careless, at best. She said in discovery that she uses the wall clock in emergency to record times on a chart. However, in this case, she noted both the time of triage and the time of the nursing assessment to have been at 6:00 a.m. This is contrary to her own evidence that she triaged Natasha between 5:15 and 5:30 a.m. She provided no explanation for the errors in time notation and there was no notation of a late entry. Most likely, this time was noted when Barcelonne completed her charting after the bradycardia patient had stabilized and after Dr. Morwood had seen Natasha and presumably returned the chart to its usual place. Natasha would have still been in the emergency department at this time. 122 At trial, Barcelonne suggested that the blood pressure reading had been below 130 systolic and that she could not remember the diastolic. However, she could not remember the reading when she noticed that it 62 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

was not documented on November 5, 2011, she told Riggs that she could not remember the numbers, and she did not put in a late entry for a partial recollection at the time. This evidence is a reconstruction and cannot be relied upon. Barcelonne’s attempt to justify the grant of a triage score before the vital signs had been taken also shows a careless attitude towards documentation and an attempt to reconstruct evidence favourably. Her evidence about seeing Natasha in the eye room is inconsistent with her other evidence and is otherwise not believable. 123 Barcelonne did not follow her usual practice in several respects as it related to Natasha, also affecting the reliability of her evidence generally and the likelihood of her having followed her usual practice. The reasons for not following usual practice will be considered later. She did not move Natasha from the triage area to an examination room after giving a triage score of 4. She gave a triage score before taking vital signs. She failed to chart the complete history given as it related to the pregnancy. If blood pressure had been taken, she failed to note it. She did not go back and note late entries or errors when she completed her chart. She did not ask pertinent questions for a subjective nursing assessment. Particularly, she did not ask where the pain radiated and how severe it was. She did not complete her nursing assessment and did not inform Dr. Morwood of this. She did not document any conversation with Dr. Morwood. 124 Dr. Morwood testified that he had a specific recollection of seeing Natasha on November 5, 2011 because of the serious and shocking events that happened on November 7, which he learned about either on November 8 or 9 through casual conversation at the nursing station. The later event “consolidated everything” for him. He immediately went to review the chart. He noticed that the blood pressure reading was missing but did not doubt that it had been done because of Barcelonne’s initial verbal report. He also noted that there were things missing in his own documentation. Dr. Morwood did not know until several years later of Rebecca’s significant injury and did not make notes of his recollection of events of November 5 until that time. 125 Dr. Morwood’s memory of the specific discussion that he had with Natasha was largely based upon what he would have discussed, with some recollection of specific questions. He could not remember any specific questions that he asked Natasha about her pregnancy but testified as to what he would have asked her in general terms and the impression that he had as a result. Pinch (Litigation guardian of) v. Morwood Dillon J. 63

126 It is not surprising that Dr. Morwood’s clinical attitude was that Natasha’s presentation was not “an obvious presentation related to pregnancy” given that: he was told that Natasha had a sore neck, had normal vital signs, and was 28 weeks pregnant; he did not review her chart before seeing her; he saw her in the triage area, which is normally reserved for minor matters; and he formed the impression that her pregnancy was going well. His notations reveal his conclusion that any symptoms Natasha had were “totally unrelated to the pregnancy”. 127 Dr. Morwood was generally an honest and forthright witness, as best illustrated by his testimony that he did not look at Natasha’s chart prior to seeing her except to note her name and his testimony that he did not notice that a blood pressure reading was not documented until after No- vember 7. He also told the court that he had no specific recollection of asking his usual questions about radiation of pain but remembered “im- pressions” that he formed. He tried his best to recall his interaction with the plaintiff mother but lacked her more specific recollection. His charting was not complete and so could provide little assistance to recollection so many years later. 128 Nurse Riggs said that she had no conversation about the patient who had presented in emergency on November 5, 2011 until several years later when she was asked to review Natasha’s emergency record. This was in contrast to Dr. Morwood who testified that he had a conversation with both nurses immediately after November 7, 2011. Riggs had no reason to have remembered the plaintiff and had no recollection of anybody from that day until she reviewed the chart. That jolted her memory that she had been called out from her break and that she and Barcelonne had been upset that she had turned off the monitor.

Determination of Key Factual Issues (a) Was the plaintiff mother’s blood pressure taken on November 5, 2011? 129 The answer to this question begins with the circumstances surrounding the plaintiff mother’s visit to the emergency department of the defendant hospital on November 5, 2011. At 5:15 a.m., Barcelonne was the sole nurse on duty in emergency, having relieved Riggs for her break. Although the emergency was not busy, Barcelonne was pre-occupied with the patient in stretcher 4 who had arrived at the hospital about 4:00 a.m. complaining of chest pain and who was known to Barcelonne from previous visits. Nursing staff had been trying to capture this patient’s 64 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

bradycardia events and were monitoring this patient’s vital signs every 15 minutes. Barcelonne’s pre-occupation with this patient was revealed by her concern to document her explanation as to why she was not with this patient at the time of the bradycardia event and her recollection that she never left the patient after that event, even though Riggs testified that they relieved one another. 130 The plaintiff mother then arrived complaining of a “sore left neck”. All indications are that Barcelonne treated Natasha’s complaint as very minor. She left Natasha in the triage area which was not normally used for examinations, except for something very minor. Barcelonne used that area only for a “quick assessment”. Aside from the issue of the blood pressure, Barcelonne acknowledged that she did not perform a thorough nursing assessment and she did not properly document her interaction with Natasha. She gave Natasha a CTAS triage level of 4 before she had obtained vital signs and performed anything other than an incomplete subjective assessment. She did not go back and complete the record. She did not ask pertinent questions related to radiation of the pain and the pregnancy. She left the chart on the triage table and gave a verbal report of normal vital signs to Dr. Morwood at the nursing station after dealing with the bradycardia patient. She did not return to the plaintiff mother even though she knew that her assessment had not been completed, that Riggs was also available and assisting with the other patients, and that the bradycardia patient was stable. 131 When she noticed later that she had not documented blood pressure, Barcelonne did not go back and check the monitor even though there had been no other patients in the triage area and regardless of Riggs telling her that she had turned off the monitor. The evidence about this established that the manner in which Riggs turned off the monitor would not have erased the data from the last patient. Turing off the beeping sound does not necessarily mean that the data is lost and Barcelonne did not bother to check. It is accepted that the monitor was beeping when Riggs turned the monitor off, but when and why the beeping started cannot be determined. However, if the plaintiff mother’s blood pressure was the last reading, and assuming that the blood pressure cuff had been removed, there would have been no beeping if the reading was normal. 132 It is accepted that Barcelonne’s taking and documentation of vital signs was interrupted by the red alarm related to the bradycardia patient. Barcelonne left abruptly in the middle of her assessment. Had she taken the blood pressure? It was not noted even though Barcelonne suggested Pinch (Litigation guardian of) v. Morwood Dillon J. 65

that she had enough time to do so when she said that she noted the triage level 4 after taking blood pressure. This was not in fact so. She had given the triage score at the outset. Barcelonne did not dash down the reading on the closest available paper or on her wrist either then or later. Natasha, whose recollection was generally good, had no recollection of her blood pressure being taken that day. When Barcelonne noticed later that she had not written in a score, she had no memory of blood pressure except that it, along with the vitals that she did document, was normal. As an experienced nurse, if she had taken and noticed a blood pressure reading, why could she not remember the reading after only a half hour or so with only one patient in between? Her attempt at trial to suggest a recollection of the systolic reading is telling. So too is the fact that she did not attempt to retrieve the data from the monitor when she should have known that there was a reasonable chance that it could still be there despite the action of Riggs. If she had done so, she may have found Natasha still in the department because she did not leave until around 7:00, about the same time that Barcelonne got off shift. She did not make a late entry that the reading was normal even when urged to do so by Riggs. 133 These circumstances lead to the conclusion that Barcelonne failed to take the plaintiff mother’s blood pressure on November 5, 2011. In the rush to respond to the bradycardia patient, she overlooked that she had not taken the blood pressure. She assumed that it was normal because the other vital signs were taken and recorded as normal. There was nothing memorable about Natasha that could cause Barcelonne to have specifically remembered taking her blood pressure on that day. The preponderance of probability after weighing all of the evidence is that Natasha’s blood pressure was not taken by anyone on November 5, 2011. 134 This conclusion is reinforced by the evidence of Drs. DuPlessis and Farquharson that Natasha probably had elevated blood pressure on No- vember 5, 2011 based upon her condition on November 7, among other factors. While it was established by Dr. von Dadelszen, and acknowledged by Dr. Farquharson, that a certain percentage of preeclampsia patients may not have elevated blood pressure 48 hours prior to eclampsia, the chronic nature of Natasha’s condition and her condition of the day of her seizures support Dr. Farquharson’s conclusion that Natasha’s blood pressure was most probably high on November 5. Dr. von Dadelszen did not specifically opine on this likelihood, except statistically, because he had assumed for purposes of his opinion that Natasha’s blood pressure was measured and was normal on November 5. However, Dr. von Dadel- 66 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

szen did say that Natasha’s blood work results at the time of seizure were equally consistent with a process that could have occurred over weeks or over hours.

(b) If the plaintiff mother’s blood pressure was not taken, would her blood pressure have been normal on November 5, 2011? 135 For the reasons already set out in paras. 78-79, 81-83, 91, and 134, it is concluded that Natasha’s blood pressure probably would not have been normal on November 5, 2011 if it had been taken. While it is accepted that there may be a certain percentage of women who may not have elevated blood pressure 48 hours before an eclamptic seizure and that preeclampsia can evolve over hours or days, Natasha Pinch was probably not one of this minority. Although the defendant doctor criticized the opinion of Dr. Farquharson on this issue as “newfound”, changeable, overstated, and unfounded based upon the prenatal history, the opinion was also supported by Dr. DuPlessis and by Dr. von Dadelszen who found specific risk factors for hypertension in the mother’s prenatal history.

(c) Did the plaintiff mother have pain radiating into her head in the early morning hours of November 5? Did Nurse Barcelonne or Dr. Morwood ask about radiating pain? Did the plaintiff mother tell either that she had pain radiating into her head? 136 It is acknowledged by all that pain in the head or a headache is a symptom of hypertension in a pregnant patient and that such a complaint should be investigated with an eye to the differential diagnosis of preeclampsia. For this reason, whether the plaintiff mother had pain in her head and whether she told the doctor so, or whether the doctor asked the proper questions to elicit this information, is an important factual issue in this trial. 137 The plaintiff mother’s perception of her symptoms on November 5, 2011 was of neck pain that was worst below the base of her skull towards the back and left of her neck and travelling into her shoulder and up to just below her ear. In direct examination, she said that the pain expanded into her shoulder and up into her head but the worst spot was on her neck. She also said that that the ache was in her head up the back of her skull and around the top of her ear. She thought of this as neck pain and she presented in the emergency department with a complaint of neck Pinch (Litigation guardian of) v. Morwood Dillon J. 67

pain. When it was suggested in cross-examination that the only symptom that she presented with was neck pain, the plaintiff mother responded: A On that point I didn’t think of them as separate things. Like, I didn’t think I had neck and a headache. I had just this pain in my neck that was spread-out over my head, and that’s when I told them I had neck pain.

Transcript November 23, 2015, p. 26-27 138 In discovery, Natasha was asked whether she had any symptoms other than neck pain, and she responded that she had none. However, she also said in discovery, and admitted as true in cross-examination, that she told the doctor that the pain was in her neck and was radiating out to her shoulder and up to her head, but that it was her neck that was bad. She also said in discovery that the neck pain radiated up towards the base of her skull. She could not recall the specific words spoken to Dr. Morwood but Natasha pointed to a spot on her neck where it hurt the worst. In cross-examination, she said that the pain radiated up from there to a point just below the ear, at ear level at the side of the head, into the head. She did not say to the doctor that she had a headache. 139 Later on the morning of November 5, when Natasha marked on the diagram at the massage clinic where her head ached, the circles drawn went to the top of the back of her head. In direct examination, Natasha said that the pain was slightly further up at the time of the massage than it had been in the emergency. In cross-examination when it was suggested that the pain did rise above the level of the neck at the time of the emergency room visit earlier that morning, Natasha said that she had pain slightly above her neck at about the level of her ear, that it went into the side of her head just around the ear, that to her, it was all one pain in her head that was getting worse and worse. The diagram indicating that the pain extended to the top of her head was made about 5 hours after attendance in emergency. Although not completely contemporary, this is reasonably close in time to have probative significance given that the plaintiff mother said that the pain had risen towards the top of her head and worsened by this time. She did not say that it was a completely different pain. 140 From all of this evidence, it is concluded that the plaintiff mother did not differentiate between neck and head pain when she was in emergency but focused upon the worst point of pain, which was at the back of her 68 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

neck. For this reason, she said that she had neck pain. However, she did have pain extending from there into her head at about ear level. 141 It has already been concluded that the plaintiff mother would have answered all questions fully and honestly when she was in emergency. There is no doubt that, if asked, she would have told both the nurse and the doctor exactly where the pain extended into her head. Barcelonne did not ask the plaintiff mother whether the neck pain radiated anywhere. The plaintiff said that she told Dr. Morwood that the pain radiated up to her head to the base of her skull, just below her ear. Dr. Morwood had formed the impression that the pregnancy was going well from the few questions asked and then turned his mind away from the pregnancy and to the neck pain. His questions thereafter did not focus on pregnancy related issues but to a differential diagnosis of neck strain, as confirmed in his notes. He then asked specific questions related to radiation of pain with no pregnancy related differential diagnoses in mind. He remembered that the pain radiated into her arm but could not remember any more specific questions that were asked. Based upon where Natasha was experiencing pain at the time, she would have indicated pain radiating into her head at ear level, if asked. Because she focused on the point where the pain was worst, her neck, she did not think to mention head pain. 142 From the doctor’s perspective, complaints of neck pain are common in the emergency department. Usually, a patient will say if they have a headache and open ended questions usually suffice to elicit this information. In this case, Dr. Morwood formed the impression early on that the pregnancy was going well. Based upon this history, he then focused on Natasha’s complaint of neck pain. Based upon questions related to similar pain in the past and having elicited that she did not have numbness or tingling in her arm, the doctor concluded that the problem was musculoskeletal in nature and that the pain was confined to the left side at the base of the neck. He testified, when looking at the diagram of pain at the time of the massage, that Natasha’s pain was only in the neck and not at all in the area circled in the head at the time of his examination. If she had indicated pain anywhere around her ear, he said that this would have been a different symptom and an altogether different differential diagnosis. 143 At the time that Dr. Morwood saw Natasha, the pain in her neck radiated into her shoulder and up to and around her ear. Although it was worst at her neck and she focused there, the doctor failed to ascertain Pinch (Litigation guardian of) v. Morwood Dillon J. 69

whether the pain radiated into her head. He also did not ascertain the radiation to her shoulder and it was not noted. The doctor’s usual questions about radiation of pain, assuming that they were asked, were so general that they did not elicit information on radiation of pain to the shoulder or to the head. Dr. Morwood focused on the plaintiff’s response to where the pain was worst. He concluded that the pain was localized to the left side of Natasha’s neck. If the doctor had asked a question about radiation into her head, Natasha certainly would at least have said that she had an ache around her ear. If the doctor had asked generally if she had pain in her head at all, the plaintiff would most probably have stated that the pain went to her ear. This was above her neck and, according to Dr. Morwood, would have qualified as head pain as far as he was concerned. But, the doctor had already turned his mind away from the pregnancy and the important issue of headache. He had concluded that the symptoms that he elicited were related to the presenting complaint and did not consider any differential diagnoses related to pregnancy. There is no evidence that he asked whether the pain radiated into her head and no evidence that he followed up on her statement that the pain was at or near her ear. He had determined that the neck pain was not pregnancy related and so did not consider further questions to ascertain whether there was pain in the head. He focused solely on neck pain as he proceeded, after just a few questions, to examine for range of motion. Dr. Morwood failed to elicit or to consider that the plaintiff mother was experiencing pain in her head, or headache.

(d) If the plaintiff mother’s blood pressure had been taken and if a history of head pain had been elicited, would a diagnosis of preeclampsia have been made on November 5, 2011? 144 It has not been seriously contested that if the blood pressure was not taken and found to be normal, and if Natasha’s blood pressure would have been high on November 5, 2011, then the diagnosis and subsequent treatment of her condition would have been completely different. It also has not been seriously contested that if her blood pressure was not taken and if Natasha had pain in her head when she presented to the emergency, then there would have been a different diagnosis altogether and her treatment would have been different. It is uncontested that, had a diagnosis of preeclampsia been made, subsequent treatment would have avoided injury to Rebecca. 145 It has been established that if Natasha’s blood pressure had been taken, it would most probably have been abnormal. If Dr. Morwood 70 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

knew about this, it would have created a pregnancy related concern for Dr. Morwood and he would then most likely have consulted with Dr. DuPlessis. Dr. DuPlessis said that he would have performed a full assessment of both Natasha and the fetus and ordered additional tests including urinalysis.

Legal Analysis and Application 146 The parties were much in agreement on the applicable law.

(a) Duty of Care 147 As acknowledged here, both doctors and nurses owe a duty of care to their patients, including a fetus subsequently born alive (Briante (Litigation guardian of) v. Vancouver Island Health Authority, 2014 BCSC 1511 (B.C. S.C.) at para. 265 (Briante); Jackson v. Kelowna General Hospital, 2006 BCSC 279 (B.C. S.C.) at para. 34, aff’d 2007 BCCA 129 (B.C. C.A.), leave to appeal to S.C.C. refused 2007 CanLII 37198 [2007 CarswellBC 2083 (S.C.C.)]; Steinebach (Litigation Guardian of) v. Fraser Health Authority, 2010 BCSC 832 (B.C. S.C.) at para. 44, var’d on other grounds 2011 BCCA 302 (B.C. C.A.), leave to appeal to S.C.C. refused 2012 CanLII 16666 [2012 CarswellBC 831 (S.C.C.)]). Within a doctor’s overall duty are specific duties to assess, to diagnose, to communicate with other treating professionals, and to refer (Briante at para. 265). 148 It is not contested that the defendants owed a duty of care to the plaintiff mother when she attended in the emergency department of the Powell River General Hospital on November 5, 2011. The main issue is whether the doctor or the nurse breached the standard of care attendant upon each’s duties to Natasha.

(b) Standard of Care 149 Generally, a doctor must exercise the reasonable degree of care and skill expected of an ordinarily competent physician in the circumstances (Crits v. Sylvester (1956), 1 D.L.R. (2d) 502 at 508, [1956] O.R. 132 (Ont. C.A.) at 143, aff’d [1956] S.C.R. 991 (S.C.C.); ter Neuzen v. Korn, [1995] 3 S.C.R. 674 (S.C.C.) at paras. 33-34). Nurses, who are an independent profession and have their own standards of care, must exercise the care and skill that is reasonably expected of a prudent and careful nurse in similar circumstances (Durnin v. Victoria Hospital, 2012 ONSC 320 (Ont. S.C.J.) at para. 18 (Durnin); Tekano (Guardian ad litem of) v. Pinch (Litigation guardian of) v. Morwood Dillon J. 71

Lions Gate Hospital, [1999] B.C.J. No. 1763 (B.C. S.C.) at para. 109). The standard required of an ordinarily competent physician or a prudent and careful nurse is not one of perfection or even excellence (Scrimgeour v. Singer, [1988] B.C.J. No. 31, 1988 CarswellBC 3543 (B.C. S.C.) at para. 11; Carlsen v. Southerland, 2006 BCCA 214 (B.C. C.A.) at paras. 13 and 15; Durnin at para. 19). 150 Nurses and doctors work as a team with each member having a role in the provision of care and an obligation to carry out their role within an appropriate standard of care depending on the setting, the circumstances of the patient, and the team approach to care (Gemoto at paras. 310-311; Granger (Litigation Guardian of) v. Ottawa General Hospital (1996), 7 O.T.C. 81, [1996] O.J. No. 2129 (Ont. Gen. Div.) at paras. 32-34) (Granger)). As such, an emergency room doctor is usually entitled to rely upon the information given to him by a nurse on staff on the understanding that the nurse is properly trained and sufficiently experienced and knows what she is doing at all times within the scope of her professional responsibilities (Granger at para. 34). However, the treatment team must take care in comparing notes to ensure that “things do not slip through the cracks” and elements of assessment should not be overlooked because a team member thinks that the other has completed the task (Briante at para. 272). The patient’s chart is the one common, essential source of information, communication and direction between the health care team (Sozonchuk at para. 18; Fullerton at para. 175; Gemoto at para. 345). 151 The standard of care is established both by what was known at the time and what was reasonably knowable or what a defendant ought reasonably to have known, seen or done in the circumstances (Gemoto at para. 45). The standard of care for a doctor in an assessment requires that the physician obtain a thorough history and avail himself of all available and useful equipment, facilities, tests and information (Briante at para. 266). A thorough history requires that the doctor canvass all readily available collateral information. The importance of collateral information will be discussed in more detail below when Briante and other cases are specifically considered. A failure to properly inform oneself of pertinent facts existing at the time of examination may lead to liability if there was reasonable opportunity for examination and the true physical conditions were so apparent that they could have been ascertained by the exercise of reasonable care and skill (Wilson v. Swanson, [1956] S.C.R. 804 (S.C.C.) at 812-813). 72 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

152 A nurse must make appropriate assessments of patients and communicate accurately those assessments to physicians (Granger at para. 26; Gemoto at paras. 306 and 313). Nurses are required to maintain accurate records and notes. The failure to adequately maintain charts by nurses is a distinct ground of negligence (Gemoto at para. 340). As stated by Goepel J. (as he then was) in Fullerton at para. 175: [175] The duties of a nurse include reliable and accurate charting. The chart is the common source of information and direction for patient care and the absence of contemporaneous chart entries at crucial points permits the court to infer that nothing was charted because nothing was done: Kolesar v. Jeffries (1974), 9 O.R. (2d) 41 (H.C.J.), var’d on other grounds (1976), 12 O.R. (2d) 142 (C.A.). 153 Another principle to keep in mind in assessing the applicable standard of care and whether it was breached includes not judging on the basis of hindsight. The actions of Morwood and Barcelonne should be assessed fairly on what was or ought to have been reasonably apparent to them in the circumstances confronting them at the time (Child v. Vancouver General Hospital (1969), [1970] S.C.R. 477 (S.C.C.) at 493; Durnin at para. 22; Croutch (Guardian ad litem of) v. B.C. Women’s Hospital & Health Centre, 2001 BCSC 995 (B.C. S.C.) at para. 32, aff’d 2003 BCCA 472 (B.C. C.A.); Gemoto at para. 310; ter Neuzen at para. 34). 154 Another important principle is that a physician or nurse is not an in- surer and will not be liable for improper treatment or diagnosis resulting from an error in judgment provided that the doctor or nurse exercised the knowledge, skill, and judgment of the average physician or nurse when considering the case (Tekano at para. 109; Smith (Guardian ad litem of) v. Grace, 2004 BCSC 395 (B.C. S.C.) at para. 6 (Smith)). If an assessment of physical facts resolves into a question of judgment, a physician cannot be held liable for his error (Wilson v. Swanson at 812). An honest exercise of judgment will not result in liability even though other doctors may disagree with that judgment (Challand v. Bell (1959), 18 D.L.R. (2d) 150 (Alta. S.C.) at 156). However, an error arising out of an exercise of judgment is actionable if the acts or omissions in the course of exer- cising that judgment fall below the proper standard of care (Smith at para. 7). Clinical judgment must be based upon information that is as complete as reasonably available and possible in the circumstances, including tests that should have been carried out but were not (Campbell at para. 100). 155 More specific considerations within standard of care may apply in the emergency room. The emergency room creates a distinctive contextual Pinch (Litigation guardian of) v. Morwood Dillon J. 73

setting (Gemoto at para. 24). In front line medicine, an emergency medicine specialist is expected to exercise a great deal of skill in history taking, examination, and instant diagnosis (Smith v. Prieditis, [1993] O.J. No. 899 (Ont. Gen. Div.) at para. 33), aff’d [1997] O.J. No. 1276 (Ont. C.A.)). The emergency room physician must apply differential diagnosis to determine whether the presenting complaint is a major problem or some other issue. The process is to give priority to the diagnosis with the most severe outcome, a “worst is first” approach (Briante at para. 271). A process of diagnosis that focuses on the most likely explanation is inconsistent with a proper differential diagnosis (Campbell at para. 100). 156 In the context of a “worst is first” approach to diagnosis, if a specific risk is foreseeable, the applicable standard of care is commensurate with the potential danger (Gemoto at para. 21; Williams (Litigation Guardian of) v. Bowler, [2005] O.J. No. 3323 (Ont. S.C.J.) at paras. 250-251 (Wil- liams)). If a potentially life-threatening condition is included in the differential diagnosis, it is urgent to either confirm it or to rule it out (Wil- liams at para. 251). 157 Counsel provided the court with some cases that also involved the failure to take and record vital signs and emergency room care. They are helpful. 158 In Aslin v. Otto, 2003 BCSC 658 (B.C. S.C.) (Aslin), the plaintiff was seriously injured in a logging accident and transported by ambulance to a very basic rural hospital where he was treated by the defendant doctor. The ambulance crew reported only about pulse and there was no suggestion of hypothermia. The doctor noted a record of pulse and blood pressure and continued to monitor those vital signs but did not notice until he was about to transfer the plaintiff to another hospital that the plaintiff’s temperature had never been recorded. The attending nurse then took the plaintiff’s temperature and it was well below normal. The plaintiff was then treated for hypothermia, amongst his other life threatening injuries, but he died in the transfer to another hospital. In consideration of the failure to take the plaintiff’s temperature, the court said that this was a nursing function according to the evidence and the doctor could rely on the nurse to perform this function. The doctor was not expected to know the temperature “until he reviews the nurse’s notes” (at para. 26). The nurse could have been expected to report any unusual vital signs and, if not done, the doctor would not be expected to know of any unusual vital signs “until he or she reviewed the nurse’s notes” (at para. 26). In Aslin, as soon as the doctor discovered that the temperature had not been re- 74 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

corded, he ordered it to be done. He was entitled to rely on the nurse to take vital signs unless the circumstances should have alerted him to a particular need to ascertain temperature. 159 In Gemoto, the infant plaintiff deteriorated in emergency without the medical team diagnosing a ruptured appendix. The defendant doctor had failed to chart data about the child’s condition throughout the afternoon, creating factual gaps, and leading to an inference that there had been a failure to take and to record vital signs. After considering all of the evidence including the improbability that the defendant doctor could have remembered specific vital signs, the court concluded that the doctor “did not chart the vital signs because she did not take them” (at para. 118). Taking of vital signs was important in the paediatric team setting and both the doctor and nurses could be expected to take and record vital signs. A complete and competent clinical assessment by the doctor included vital signs. While the nurse was found to have an independent duty to take vital signs, the doctor failed to notice that vital signs were lacking in the documentation. The doctor breached the standard of care in failing to monitor vital signs. A nurse was also found in breach of the standard of care for failure to take vital signs in the circumstance of only one vital sign having been noted. The nurse’s standard practice for taking vital signs was measured against documentary evidence. The nurse was under multiple time pressures and could only speculate as to why there had been no documentation. 160 In Borglund v. Fraser Valley Health Region, 2006 BCSC 1338 (B.C. S.C.), the plaintiff presented at the emergency department three times complaining of headache and vomiting before he was referred to a neurologist who diagnosed the plaintiff with a ruptured intracerebral aneu- rysm. The first two treating doctors were distracted by the plaintiff’s report of an assault involving a blow to the head and, associating the headache with the assault, failed to diagnose subarachnoid haemorrhage. Brown J. considered the critical issue to be the history taken by the emergency room doctors. In focussing on the assault, the doctors failed to obtain pertinent information regarding onset and intensity of the headache which would have alerted them to the problem. The doctors failed to ask the necessary questions to rule out a serious underlying cause. The judge found that the information was available because it was obtained from the patient by the neurologist several days later. If the doctors had asked sufficient questions to elicit the information, it would have been obtained and appropriate investigation would have occurred. The case then revolved around causation. Pinch (Litigation guardian of) v. Morwood Dillon J. 75

161 In Briante, the plaintiff was brought to psychiatric emergency by his family who were concerned about his behaviour. Neither the psychiatric nurse nor the doctor obtained collateral information from the family and the nurse failed to follow up on a urine sample that was returned full of water when the patient had reported drug use. The plaintiff was discharged and later cut his throat. The nurse failed to meet the standard of care by failing to solicit information from the family and doing nothing when she learned that the urine sample was water. The doctor breached the standard of care in failing to obtain a complete collateral history and failing to make further inquiry to rule out dangerous diagnoses. The collateral information obtained by the nurse was neither detailed nor sufficiently discussed with the doctor. The communication between the doctor and the nurse was insufficient. If the nursing assessment seemed incomplete or unclear, the physician should have obtained a direct collateral history. She was not entitled to rely upon the nurse’s assessment when she knew that it was incomplete. Despite the negligence, causation was not established because it could not be concluded that “but for” the discharge the plaintiff still would not have attempted to take his own life. 162 In this case, Nurse Barcelonne failed to take an adequate history from Natasha and failed to perform an adequate assessment. Most importantly, she did not take Natasha’s blood pressure, a basic requirement. She then failed to accurately report these facts to Dr. Morwood either by notation on the chart or verbally. She was careless in her care of the plaintiff mother and did not meet the standard of care reasonably expected in the circumstances. 163 Dr. Morwood did not take an adequate history from Natasha, which would likely have revealed that her blood pressure had been on the high side three weeks earlier. He did not ask the pertinent questions that would have elicited the information that the “neck pain” radiated into or towards the head. He all too quickly took the pregnancy out of the equa- tion and focused on the most likely explanation, the patient’s report of neck pain. He did not make use of all information that was reasonably available because he did not review the nursing assessment and did not notice that Barcelonne had not recorded a blood pressure on the chart. His failure to look at all of the information that was available to him, combined with his failure to take an adequate history, takes his failure to diagnose preeclampsia beyond an error of judgment. He looked at the one page chart twice: first to note Natasha’s name before he saw her and then to make his own notes. On both occasions, he failed to notice that blood pressure was not recorded, data which would have been important 76 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

to know in a pregnant patient. In that circumstance, it was not acceptable for Dr. Morwood to have relied upon the casual verbal report from Barcelonne that all vitals were normal. He should have noted the failure and then taken the blood pressure himself or at least made further inquiry. Overall, Dr. Morwood failed to meet the standard of care reasonably expected of him in all of the circumstances.

(c) Causation 164 The parties agreed that the test for causation was recently settled by the Supreme Court of Canada in Clements (Litigation Guardian of) v. Clements, 2012 SCC 32 (S.C.C.). The plaintiff must show that she would not have suffered the loss “but for” the negligent acts of the defendant (at para. 46). The test is to be applied in a robust common sense manner with no need for scientific evidence of the precise contribution that the defendant’s negligence made to the injury (at para. 9). Depending on the evidence, a judge may infer that the defendant’s negligence probably caused the loss (at para. 10). 165 It is not contested that if Barcelonne did not take the blood pressure and if it would not have been normal, all of which has been established, then the plaintiff has proven causation. Based upon the factual findings, Rebecca would most likely not have suffered her brain injury if Natasha had been diagnosed with preeclampsia on November 5. Dr. Morwood would have suspected preeclampsia with a high blood pressure. He would have repeated the blood pressure, ordered a urinalysis, consulted with Dr. DuPlessis and referred the plaintiff mother to the maternity ward, all of which would most probably have resulted in appropriate treatment which would have prevented the eclamptic seizures that followed.

Conclusion 166 The defendant Dr. Morwood and the defendant Powell River General Hospital, due to its vicarious liability for the acts of Nurse Barcelonne, are liable for the injuries sustained by Rebecca Pinch. The defendants have requested that the matter of apportionment be decided later and the court accedes to that request. The matter of costs may also be spoken to. Action allowed. Rain Coast Water Corp. v. British Columbia 77

[Indexed as: Rain Coast Water Corp. v. British Columbia] Rain Coast Water Corp., Plaintiff and Her Majesty the Queen in Right of the Province of British Columbia, Bill Vander Zalm, Elwood Veitch (Estate of), David Parker, Richard Roberts (aka Dick Roberts), Cliff Serwa, Richard Dalon, Margaret Annett, and W.C.W. (aka Western Canada Beverage Corporation), Defendants British Columbia Supreme Court Docket: Vancouver A963919 2016 BCSC 845 Leask J. Heard: October 22, 24, 26, 29-31, November 1-2, 5-9, 13, 19- 23, 27-30, 2012; March 4-6, 2013 Judgment: May 12, 2016 Torts –––– Fraud and misrepresentation — Negligent misrepresentation (Hedley Byrne principle) — Miscellaneous –––– Plaintiff was company incorporated by B for purpose of exporting British Columbia water in bulk and as bottled water — From 1983 to 1992, plaintiff dealt with number of government bureaucrats — Plaintiff claimed mistreatment by Government of British Colum- bia through actions of premier, several cabinet ministers, and number of civil servants — Plaintiff also complained that rival was given preferential treatment in unlawful manner by premier of day, several cabinet ministers and civil servants reporting to them — Trial held concerning plaintiff’s claims — Plaintiff failed to establish that any defendant committed tort of negligent misrepresentation — Court was in substantial agreement with defendants’ submissions that regulatory statutory regime under Water Act and Land Act precluded establishment of “special relationship” between plaintiff and civil servants and cabinet ministers with whom B had dealings — Water Act, Land Act, and related legislation were aimed at regulating access to provincial resources, and as such were not intended to create private law tort duties — It would be inconsistent to find that series of specific interactions between provincial government servants and plaintiff could give rise to special relationship and duty of care that might conflict with general duty to public to manage provincial resources in accordance with statutory scheme — In absence of “special relationship” giving rise to duty of care between defendants and plaintiff, plaintiff’s claim based on negligent misrepresentation had to fail. 78 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

Natural resources –––– Waters and watercourses — Miscellaneous –––– Plaintiff was company incorporated by B for purpose of exporting British Co- lumbia water in bulk and as bottled water — From 1983 to 1992, plaintiff dealt with number of government bureaucrats — Plaintiff claimed mistreatment by Government of British Columbia through actions of premier, several cabinet ministers, and number of civil servants — Plaintiff also complained that rival was given preferential treatment in unlawful manner by premier of day, several cabinet ministers and civil servants reporting to them — Trial held concerning plaintiff’s claims — Plaintiff failed to establish that any defendant committed tort of negligent misrepresentation — Court was in substantial agreement with defendants’ submissions that regulatory statutory regime under Water Act and Land Act precluded establishment of “special relationship” between plaintiff and civil servants and cabinet ministers with whom B had dealings — Water Act, Land Act, and related legislation were aimed at regulating access to provincial resources, and as such were not intended to create private law tort duties — It would be inconsistent to find that series of specific interactions between provincial government servants and plaintiff could give rise to special relationship and duty of care that might conflict with general duty to public to manage provincial resources in accordance with statutory scheme — In absence of “special relationship” giving rise to duty of care between defendants and plaintiff, plaintiff’s claim based on negligent misrepresentation had to fail. Torts –––– Interference with economic relations — Elements of tort — Use of unlawful means –––– Plaintiff was company incorporated for purpose of exporting British Columbia water in bulk and as bottled water — From 1983 to 1992, plaintiff dealt with number of government bureaucrats — Plaintiff claimed mistreatment by Government of British Columbia through actions of premier, several cabinet ministers, and number of civil servants — Plaintiff also complained that rival was given preferential treatment in unlawful manner by premier of day, several cabinet ministers and civil servants reporting to them — Trial held concerning plaintiff’s claims — Plaintiff established that defendant premier and defendant province committed unlawful means tort to plaintiff’s detriment based on imposition of moratorium on water licences timed to benefit plaintiff’s rival in its dealings with certain California water district — There was unlawful conduct directed at certain companies, including SB, and those companies could have brought actions for misfeasance in public office if they had suffered loss as result of defendant’s conduct — Plaintiff had agreement with SB to supply water if SB got water district contract, and according to evidence of president of board of directors of water district, one of reasons for not concluding contract with SB was strange behaviour of British Columbia provincial government — Unlawful activities directed at SB caused economic loss to plaintiff — Ministers of provincial government, including premier, were rendering material assistance to plaintiff’s rival and rival’s principal in competition to secure water supply contracts with various California water districts. Rain Coast Water Corp. v. British Columbia 79

Torts –––– Misfeasance in public office — Miscellaneous –––– Plaintiff was company incorporated for purpose of exporting British Columbia water in bulk and as bottled water — From 1983 to 1992, plaintiff dealt with number of government bureaucrats — Plaintiff claimed mistreatment by Government of British Columbia through actions of premier, several cabinet ministers, and number of civil servants — Plaintiff also complained that rival was given preferential treatment in unlawful manner by premier of day, several cabinet ministers and civil servants reporting to them — Trial held concerning plaintiff’s claims — Plain- tiff established that defendant R committed tort of misfeasance in public office by unlawful cancellation of plaintiff’s foreshore licence — Deputy Comptroller of Water Rights, F, committed tort of misfeasance in public office by failing to disclose $5,000 water tariff to plaintiff — While F was not defendant in action, defendant province was found liable for F’s actions on basis of respondent superior — Defendant premier committed tort of misfeasance in public office by causing order in council creating moratorium on issue of export licences for water to be issued at time that would assist rival of plaintiff and harm plaintiff as well as certain other companies — Defendant province was liable for Category B misfeasance in public office for its dealings with rival of plaintiff. Cases considered by Leask J.: Alberta (Minister of Public Works, Supply & Services) v. Nilsson (1999), 67 L.C.R. 1, 1999 CarswellAlta 499, [1999] A.J. No. 645, 24 R.P.R. (3d) 237, 46 C.C.L.T. (2d) 158, 70 Alta. L.R. (3d) 267, [1999] 9 W.W.R. 203, (sub nom. Alberta v. Nilsson) 246 A.R. 201, 1999 ABQB 440 (Alta. Q.B.) — followed Bhasin v. Hrynew (2014), 2014 SCC 71, 2014 CSC 71, 2014 CarswellAlta 2046, 2014 CarswellAlta 2047, [2014] 11 W.W.R. 641, 27 B.L.R. (5th) 1, 464 N.R. 254, 379 D.L.R. (4th) 385, 20 C.C.E.L. (4th) 1, [2014] S.C.J. No. 71, [2014] 3 S.C.R. 494, 584 A.R. 6, 623 W.A.C. 6, 4 Alta. L.R. (6th) 219 (S.C.C.) — followed Bram Enterprises Ltd. v. A.I. Enterprises Ltd. (2014), 2014 SCC 12, 2014 Car- swellNB 17, 2014 CarswellNB 18, 366 D.L.R. (4th) 573, 2014 CSC 12, 453 N.R. 273, 48 C.P.C. (7th) 227, 1079 A.P.R. 1, 416 N.B.R. (2d) 1, 21 B.L.R. (5th) 173, (sub nom. A.I. Enterprises Ltd. v. Bram Enterprises Ltd.) [2014] 1 S.C.R. 177, [2014] S.C.J. No. 12, 7 C.C.L.T. (4th) 1 (S.C.C.) — considered Canadian National Railway v. Norsk Pacific Steamship Co. (1992), 11 C.C.L.T. (2d) 1, 91 D.L.R. (4th) 289, 137 N.R. 241, (sub nom. Norsk Pacific Steamship Co. c. Cie des Chemins de Fer nationaux du Canada) [1991] R.R.A. 370, [1992] 1 S.C.R. 1021, 1992 CarswellNat 168, 53 F.T.R. 79, 1992 CarswellNat 655, 1992 A.M.C. 1910, EYB 1992-67217, [1992] S.C.J. No. 40, 228 W.A.C. 70, 11 C.C.L.T. (2d) 14 (S.C.C.) — considered Cooper v. Hobart (2001), 2001 SCC 79, 2001 CarswellBC 2502, 2001 Car- swellBC 2503, [2002] 1 W.W.R. 221, [2001] S.C.J. No. 76, 206 D.L.R. (4th) 193, 96 B.C.L.R. (3d) 36, (sub nom. Cooper v. Registrar of Mortgage 80 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

Brokers (B.C.)) 277 N.R. 113, 8 C.C.L.T. (3d) 26, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 160 B.C.A.C. 268, (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.)) 261 W.A.C. 268, [2001] 3 S.C.R. 537, REJB 2001-26862, [2001] B.C.T.C. 215, 2001 CSC 79 (S.C.C.) — considered Grace v. British Columbia (Lieutenant Governor in Council) (2000), 2000 BCSC 923, 2000 CarswellBC 1273, [2000] B.C.J. No. 1201, [2000] B.C.T.C. 390 (B.C. S.C.) — referred to Jones v. Swansea City Council (1990), [1990] 3 All E.R. 737, [1990] 1 W.L.R. 1453, [1990] H.L.J. No. 51 (U.K. H.L.) — considered Knight v. Imperial Tobacco Canada Ltd. (2011), 2011 SCC 42, 2011 Car- swellBC 1968, 2011 CarswellBC 1969, 21 B.C.L.R. (5th) 215, [2011] 11 W.W.R. 215, 25 Admin. L.R. (5th) 1, 86 C.C.L.T. (3d) 1, (sub nom. British Columbia v. Imperial Tobacco Canada Ltd.) 335 D.L.R. (4th) 513, (sub nom. British Columbia v. Imperial Tobacco Canada Ltd.) 419 N.R. 1, [2011] S.C.J. No. 42, (sub nom. British Columbia v. Imperial Tobacco Canada Ltd.) 308 B.C.A.C. 1, [2011] A.C.S. No. 42, (sub nom. British Columbia v. Imperial Tobacco Canada Ltd.) 521 W.A.C. 1, 83 C.B.R. (5th) 169, [2011] 3 S.C.R. 45 (S.C.C.) — considered Moulton Contracting Ltd. v. British Columbia (2015), 2015 BCCA 89, 2015 CarswellBC 446, 63 C.P.C. (7th) 221, 381 D.L.R. (4th) 263, 67 B.C.L.R. (5th) 314, [2015] 4 W.W.R. 467, 17 C.C.L.T. (4th) 224, 368 B.C.A.C. 127, 633 W.A.C. 127, 37 B.L.R. (5th) 175 (B.C. C.A.) — considered O’Dwyer v. Ontario Racing Commission (2008), 2008 ONCA 446, 2008 Cars- wellOnt 3262, 293 D.L.R. (4th) 559, 58 C.C.L.T. (3d) 161, 238 O.A.C. 364, 95 Admin. L.R. (4th) 140, [2008] O.J. No. 2219 (Ont. C.A.) — considered Odhavji Estate v. Woodhouse (2003), 2003 SCC 69, 2003 CarswellOnt 4851, 2003 CarswellOnt 4852, 19 C.C.L.T. (3d) 163, [2003] S.C.J. No. 74, 233 D.L.R. (4th) 193, 312 N.R. 305, 180 O.A.C. 201, [2003] 3 S.C.R. 263, 11 Admin. L.R. (4th) 45, 70 O.R. (3d) 253 (note), [2004] R.R.A. 1, 2003 CSC 69 (S.C.C.) — followed Powder Mountain Resorts Ltd. v. British Columbia (2001), 2001 BCCA 619, 2001 CarswellBC 2225, 94 B.C.L.R. (3d) 14, [2001] 11 W.W.R. 488, 159 B.C.A.C. 14, 259 W.A.C. 14, 8 C.C.L.T. (3d) 170, [2001] B.C.J. No. 2172, [2001] B.C.T.C. 176 (B.C. C.A.) — considered Queen v. Cognos Inc. (1993), 45 C.C.E.L. 153, 93 C.L.L.C. 14,019, 99 D.L.R. (4th) 626, 60 O.A.C. 1, 14 C.C.L.T. (2d) 113, [1993] 1 S.C.R. 87, 147 N.R. 169, 1993 CarswellOnt 801, 1993 CarswellOnt 972, [1993] S.C.J. No. 3, EYB 1993-67486, D.T.E. 93T-198 (S.C.C.) — followed R. v. Sharma (1993), 14 M.P.L.R. (2d) 35, 19 C.R. (4th) 329, 10 Admin. L.R. (2d) 196, 79 C.C.C. (3d) 142, 100 D.L.R. (4th) 167, [1993] 1 S.C.R. 650, 149 N.R. 161, 61 O.A.C. 161, 1993 CarswellOnt 79, 1993 CarswellOnt 973, [1993] S.C.J. No. 18, EYB 1993-67490 (S.C.C.) — referred to Rain Coast Water Corp. v. British Columbia 81

Rain Coast Water Corp. v. British Columbia (2008), 2008 BCSC 1182, 2008 CarswellBC 1834, 38 C.E.L.R. (3d) 254 (B.C. S.C. [In Chambers]) — considered Rain Coast Water Corp. v. British Columbia (2010), 2010 BCSC 114, 2010 Car- swellBC 196, 91 R.P.R. (4th) 134 (B.C. S.C.) — considered Rakhra v. Jhutty (2012), 2012 BCSC 882, 2012 CarswellBC 1783, 23 R.P.R. (5th) 68 (B.C. S.C.) — considered Roncarelli c. Duplessis (1959), [1959] S.C.R. 121, 16 D.L.R. (2d) 689, 1959 CarswellQue 37, [1959] S.C.J. No. 1 (S.C.C.) — considered Rustad Brothers & Co. v. British Columbia (Minister of Forests) (1988), 23 B.C.L.R. (2d) 188, 1988 CarswellBC 55, (sub nom. Rustad Bros. & Co. v. British Columbia) [1988] B.C.J. No. 96 (B.C. S.C.) — considered Shell Canada Products Ltd. v. Vancouver (City) (1994), [1994] 3 W.W.R. 609, 20 M.P.L.R. (2d) 1, 20 Admin. L.R. (2d) 202, 110 D.L.R. (4th) 1, 88 B.C.L.R. (2d) 145, [1994] 1 S.C.R. 231, 163 N.R. 81, 41 B.C.A.C. 81, 66 W.A.C. 81, 1994 CarswellBC 115, 1994 CarswellBC 1234, [1994] S.C.J. No. 15, EYB 1994-67078 (S.C.C.) — considered Three Rivers District Council v. Bank of England (No. 3) (2000), [2000] 2 W.L.R. 1220, [2000] H.L.J. No. 32, [2000] 3 All E.R. 1, (2000) 150 New L.J. 769, [2003] 2 A.C. 1, 2001 UKHL 16 (U.K. H.L.) — followed Statutes considered: Financial Administration Act, R.S.B.C. 1996, c. 138 Generally — referred to Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 Generally — referred to Land Act, R.S.B.C. 1979, c. 214 Generally — referred to Limitation Act, R.S.B.C. 1996, c. 266 Generally — referred to s. 6(4) — considered Ocean Falls Corporation Repeal Act, S.B.C. 1983, c. 7 Generally — referred to Privacy Act, R.S.B.C. 1996, c. 373 Generally — referred to Utilities Commission Act, S.B.C. 1980, c. 60 Generally — referred to Water Act, R.S.B.C. 1979, c. 429 Generally — referred to s. 2 — considered s. 8 — referred to s. 9 — referred to s. 41(1) — considered s. 45 — considered 82 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

Water Protection Act, R.S.B.C. 1996, c. 484 Generally — referred to Water Utility Act, R.S.B.C. 1979, c. 430 Generally — referred to Rules considered: Rules of Court, 1990, B.C. Reg. 221/90 R. 19(24) — considered Regulations considered: Water Act, R.S.B.C. 1996, c. 483 Water Regulation, B.C. Reg. 204/88 Generally — referred to

TRIAL concerning plaintiff’s claims.

G. Douvelos, A.S. Angus, H.S. Fairley, for Plaintiff G.J. Underwood, A. Davies, N.E. Brown, Q.C., for Defendants

Leask J.: Introduction 1 This is a claim by the plaintiff, Rain Coast Water Corp. (“Rain Coast”), formerly known as Coast Mountain Aquasource Ltd., of mistreatment by the Government of British Columbia through actions of Pre- mier Vander Zalm, several Cabinet Ministers and a number of civil servants. Rain Coast was a company incorporated by Colin Beach for the purpose of exporting B.C. water in bulk and also as bottled water. From 1983 to 1992 Rain Coast dealt with a number of government bureaucrats, primarily the Comptroller of Water Rights and civil servants reporting to him, as well as the Lands Branch of the Ministry of Lands, Parks, and Housing. In addition to complaints about how Rain Coast was treated by the bureaucrats, Rain Coast also complains that a rival, Western Canada Water (“WCW”), was given preferential treatment in an unlawful manner by the Premier of the day, several Cabinet Ministers and civil servants reporting to them. 2 Rain Coast applied for water licences to enable it to export water in bulk by sea (intended primarily to supply various California water districts) as well as exporting bottled water. The reason it was necessary for Rain Coast to deal with the Lands Branch was a requirement explained to Mr. Beach by Comptroller of Water Rights staff that no one could obtain a water licence without an “appurtenant” interest in land. Rain Coast was Rain Coast Water Corp. v. British Columbia Leask J. 83

seeking to export water from Freil Lake near Hotham Sound on B.C.’s south coast. 3 Rain Coast’s rival, WCW, succeeded in getting government permission to export water in bulk, as well as bottled water, from Link Lake, which was close to the town of Ocean Falls, further north on the B.C. coast. Rain Coast complains about the manner in which WCW obtained its ability to export water, as well as asserting that the government breached the terms of the Water Act, R.S.B.C. 1979, C. 479 (“1979 Water Act”) by giving favourable treatment to WCW. 4 Eventually the government imposed a moratorium of the export of bulk water, initially by regulation and then by statute. Rain Coast chal- lenges the moratorium, both on constitutional grounds and on the basis that it was at least in part done to favour WCW. 5 Rain Coast claims that the conduct of the civil servants and Cabinet Ministers constituted the torts of negligent misrepresentation, the unlawful means tort and the tort of misfeasance in public office. Following the Supreme Court of Canada decision in Bhasin v. Hrynew, 2014 SCC 71 (S.C.C.), Rain Coast also argued that some of the Government’s actions entitled it to remedies for breach of contract. 6 In an earlier summary trial application, Rain Coast Water Corp. v. British Columbia, 2010 BCSC 114 (B.C. S.C.), I found that the Lands Branch’s cancellation of Rain Coast’s Foreshore Licence on November 28, 1990 was unlawful. In this trial one of the issues was whether that unlawful act could form the basis for one or more of the tort allegations made by Rain Coast. 7 The defendants plead, and rely upon, the Limitation Act, R.S.B.C. 1996, c/266 as a defence.

Issues 1. Is the Limitation Act available to the defendants as a defence to some, or all, of the plaintiff’s claims? 2. Has the plaintiff, Rain Coast, established that one or more of the defendants committed the tort of negligent misrepresentation? 3. Has the plaintiff, Rain Coast, established that one or more of the defendants committed the unlawful means tort? 4. Should the principles enunciated in Bhasin v. Hrynew be applied in this case? 84 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

5. Has the plaintiff, Rain Coast, established that one or more of the defendants committed the tort of misfeasance in public office: (a) by the unlawful cancellation of the plaintiff’s foreshore licence; or (b) by any other means? 6. Were the regulations or statute establishing a moratorium banning the export of water in bulk ultra vires the Province of British Columbia. 7. What damages, if any, is the plaintiff, Rain Coast, entitled to recover?

Facts 1. Obtaining the Plaintiff’s Water Licence 8 Before the plaintiff company was incorporated, Colin Beach posted an Application for a Water Licence at Freil Lake in September 1982 which specified, among other things, that the water was to be used for “bulk and/or bottled production for human consumption, domestic and export ...” In December 1982 he posted an application for a foreshore lease on the shore of Hotham Sound below Freil Lake. On the 6 January 1983 Mr. Beach met with J.W. Webber, Assistant to the Comptroller of Water Rights, to discuss his application for a water licence. Mr. Beach was advised that it was necessary to have “an interest in land” to support a water licence. Mr. Beach wrote to Mr. Webber on 11 January, 1983 asking that consideration be given to a twenty year term. 9 On 28 February, 1983 P.M. Brady, Comptroller of Water Rights, wrote to Mr. Beach: To date, it has been Provincial policy to consider applications for licences to export water from remote coastal streams, having relatively small watersheds and which discharge into the ocean. It also requires to be demonstrated that the water to be exported is surplus to any known or foreseeable Provincial requirements and that its export is in the best interests of the Province. When considering the above factors, I shall require supporting information on the markets you in- tend to serve, the terms and conditions of any tentative agreements you have in prospect, and any other data that may influence my decision regarding the issuance of a water licence While I appreciate your concern with regard to a 20 year licensing term, it would be inappropriate for me at this stage to anticipate any specific terms and conditions which would apply if you were successful in obtaining a Rain Coast Water Corp. v. British Columbia Leask J. 85

water licence. We will, however, have the opportunity to review this matter as the application process proceeds and related impactions, if any, emerge. [Emphasis added] 10 The plaintiff was incorporated as Coast Mountain Aquasource Ltd. on 21 March, 1983 in order to develop Colin Beach’s Freil Lake project. On 31 March, 1983 the newly incorporated company submitted extensive and detailed plans to both the Lands and Water Management Branches of the B.C. Government. On 6 April, 1983 Mr. Beach met with G.A. Rhoades, Regional Director, Ministry of Lands, Parks and Housing to discuss the application for a foreshore lease. 11 On 21 April, 1983 Mr. Beach met with Peter Brady, Comptroller of Water Rights. Mr. Brady explained to Mr. Beach the four steps for his company to get a water licence; the third step being the establishment of an interest in land by the applicant. Mr. Brady explained to Mr. Beach that the first step in being able to obtain a water licence for the Freil Lake project was a policy decision by government on the export of water. Mr. Brady advised Mr. Beach that the Water Management Branch expected to place the matter of a policy on the bulk export of water before government within the next two or three months, and that an assured time for a decision on the policy could not be given. He also told Mr. Beach that “one of the requirements for a water licence would be assurance that his firm had the financial means and potential to exercise the rights under the licence.” 12 On 25 May 1983, Mr. Rhoades advised the plaintiff that its foreshore lease application on Hotham Sound had been disallowed. Mr. Rhoades advised that the government wished to establish a policy for the export of fresh water. He said “You may again resubmit your application according to any policy which has been established at that time by Cabinet.” 13 On 8 June 1983 Mr. Brady wrote to the Plaintiff: ...I would emphasize that, although you have made application therefore, no licence in respect of the diversion and use of water from Freil Lake for export purposes has yet been issued. Additionally, you currently do not possess the related, statutory property ownership status which is a mandatory qualification for the holder of a water licence. ... With regard to the establishment of Provincial Government policy, this is the prerogative of Cabinet. At this time it is not known what procedures they will adopt.... 86 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

14 In a second letter, on 29 June 1983, Mr. Brady stated: The disallowance of your lease application by the Regional Director, Lands and Housing, does very much prejudice the possibility of your getting a water licence. As stated in earlier correspondence and at our meeting on April 21, 1983, an applicant must establish the appurtenant interest in land before the licence can be issued. 15 On 16 Sept 1983 J.E. Farrell of the Water Management Branch met with Mr. Beach to discuss the plaintiff’s Freil Lake project. Mr. Farrell advised Mr. Beach that the WMB did not anticipate rejecting the plaintiffs application for a water licence because of the rejection of the plaintiffs application for a foreshore lease, but rather that the WMB would be awaiting government policy prior to taking any further action. Mr. Beach asked Mr. Farrell about the status of the government policy on export of water and was advised that the policy was in the draft stage, and that Mr. Farrell could not forecast when Cabinet would make a decision on the policy. 16 On 30 September 1983 Mr. Farrell wrote to the plaintiff: I confirm that your water licence application will remain in good standing pending a decision by Cabinet on the general policy covering the commercial export of water in bulk containers or tanker vessels. ... Subject to Cabinet approval of the general policies pertaining to bulk export of water, it is proposed to implement an integrated, phased, project approval process. 17 On 4 October 1983 Anthony J. Brummet, Minister of Lands, Parks and Housing, wrote the plaintiff, stating as follows: Policy respecting the export of fresh water from the province has not yet been established. Until such time as export approval has been given and the regulations and procedures had been put into place, land applications for this purpose cannot be accepted. For this reason, your application cannot be reinstated by the Ministry. The disallowance of your application at this time does not preclude you from making a new application in the future, according to any policy which has been established. 18 On 21 October 1983 Anthony Brummet, Minister of Lands, Parks and Housing, and also the Minister of Environment, advised both of his deputy ministers: that “our Ministries have approval to consider applications for export of fresh water from B.C. on their own merits in each case”. 19 On 31 October 1983 John C. Johnston, Deputy Minister, Lands Parks and Housing, wrote to Ben E. Marr, Deputy Minister, Environment, and advised Mr. Marr that he (Johnston) had reviewed the Beach application Rain Coast Water Corp. v. British Columbia Leask J. 87

with his staff and that they had concluded that “it is best handled as a major project, similar to a major ski development or log handling development.” Mr. Johnston suggested that the Ministry of Lands, Parks and Housing take the lead role for the project. 20 On 16 November 1983 Anthony J. Brummet, Minister, Lands Parks and Housing, wrote to the plaintiff that: You will be interested to learn that I have recently instructed my Ministries of Environment and Lands, Parks and Housing to consider your application to export water on its own merits with the view that such export would be acceptable if environmental and resource concerns can be met. 21 On 6 December 1983 Mr. Rhoades wrote, advising the plaintiff that its application for foreshore tenure would be accepted based on the information and policy requirements set out in the letter. 22 On 16 December 1983 The plaintiff again applied to the Lands Branch for a foreshore lease on Hotham Sound, below Freil Lake. 23 On 21 December 1983 A Province of B.C. memorandum regarding the plaintiff’s water export project application referred to a normal term of a foreshore lease being 30 years, and said that the foreshore lease and water licence should be inter-related as to terms and conditions. 24 On 24 January 1984 Mr. Beach met with Water Management Branch officials (Farrell, Webber and Smith) to discuss the plaintiff’s water licence application. Mr. Beach was advised that the policy on the rate for water licence (for export purposes) was still under review. 25 On 7 February 1984 Mr. Beach advised Mr. Farrell, Deputy Comp- troller of Water Rights, that he remained concerned with “removing the ‘regulatory risks’ associated with the proposed development”. Mr. Beach asked whether or not Mr. Farrell would grant an initial term of twenty years for a water licence, and if not, to tell him the maximum period for which a licence would be issued. 26 In a letter dated 8 February 1984 from Anthony Brummet, Minister of Lands, Parks and Housing, Mr. Brummet acknowledged that Lands had received the plaintiff’s application and conceptual proposal, and that Ministry staff had begun an analysis. Mr. Brummet also advised Mr. Beach that his Ministry required “ample evidence of complete financial research and planning, before the proposal can proceed to the next stage”. 88 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

27 On 21 February 1984 Mr. Farrell, wrote that “it would be inappropriate for me to anticipate any specific terms and conditions which would apply with the issue of a [water] licence.” He also advised Mr. Beach that “Policy on water licence fees is still being reviewed by government. 28 On 8 March 1984 Mr. Beach wrote to the Water Management Branch: As indicated previously, I remain concerned with having a response to my letter of February 7, 1984 to Mr. Farrell. In particular, I believe that it will be of significant, and possibly of critical, importance to have a licensing term of twenty years. The reasons for this may not be self-evident. Regardless of what vessels may be selected for water transportation, it is clear that the proposed operation will involve considerable capital expenditures for discharge and distribution facilities. Without a guarantee of supply for twenty years, it may be impossible to demonstrate the economy of an imported supply of water from my proposed source. 29 On March 13, 1984, Tom Smith, Head of Operations, Water Branch wrote a memorandum to J.W. Farrell, Deputy Comptroller of Water Rights: I raise this matter with you in writing since the need to know the fees structure for export of water is becoming critical, particularly in connection with the water application from Coast Mountain Aquasource Ltd (the plaintiff). As you are aware a meeting was held on February 29, 1984 with Lands, Parks and Housing (L.P.H.) and Forestry. The conceptual proposal submitted by Mr. Beach was accepted and it was agreed that letters would be sent to Mr. Beach. L.P.H. will be sending a letter indicating approval in principle subject to submission and acceptance of the formal proposal. As agreed I would be writing to Mr. Beach telling him that I was recommending to you that processing of his application proceed towards the issue of a water licence again subject to his obtaining tenure to land. In later discussion with L.P.H. I have learned that their letter will include an attachment, in essence a draft lease, setting out conditions in detail ard their fee schedule. This is felt by L.P.H. to be necessary in order that Mr. Beach can prepare the formal proposal which involves knowledge of the detailed financial aspects of the project in order that he can develop markets. This is a fair approach with a proponent who is seriously pushing ahead with the venture. It is now important that we are up front with Mr. Beach and advise him not only of the physical requirements but also the schedule of Rain Coast Water Corp. v. British Columbia Leask J. 89

fees regarding export of water. He needs this for submission of the formal proposal. In order that I can write Mr. Beach and fully inform him regarding - commitments in connection with water licensing would you please advise what can be said regarding fees. [Emphasis added] 30 On the copy of the memorandum introduced in court there is a handwritten reply to Mr. Smith: At meeting on April 2, 1984 Mr. Brady advised he has discussed with DM - will discuss again ASAP. JEF April 2, 1984 31 On 3 April 1984 Crown Lands gave approval in principle to the plaintiffs’ proposal to develop the foreshore at Freil Falls, on Hotham Sound, pursuant to the plaintiff’s Conceptual Proposal document. G.A. Rhoades, Regional Director, advised the plaintiff that his Ministry “hereby agrees to deal with Coast Mountain Aquasource Ltd., for a period of two (2) years from the date of this letter, in order to develop and complete the Formal Proposal. Upon receipt of an acceptable proposal, this Ministry would issue a lease, in the form of the specimen provided.” 32 Water Management Branch (Tom Smith, Head, Policy, Evaluation and Operations) advised the plaintiff that, with the acceptance of the plaintiff’s conceptual proposal, he was recommending to the Comptroller of Water Rights that processing of the plaintiff’s application “proceed towards the issue of a water licence subject to the completion by you of the formal proposal and the issue of a foreshore lease.” Smith also advised the plaintiff that his recommendation to the Comptroller would include a recommendation that the licence be issued with an initial term of 10 years, with 10-year renewals available at the discretion of the Comptroller. 33 On 5 July 1984 the Provincial Government issued a statement that applications for the bulk export of water discharging to the ocean would be considered on their individual merits. 34 On 4 September 1984 B.E. Marr, Deputy Minister of Environment, forwarded a cabinet submission on proposed policies on the export of water to his colleague Sandy Peel, D.M. of Industry and Small Business Development. The cabinet submission noted that the present rental fees were “unrealistically low”. It recommended that licences for export purposes be issued with a term of 10 years, and that the fees for export purposes be fixed according to the tariff of fees attached as Appendix A to 90 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

the cabinet submission. This was the fee structure that was finally adopted by cabinet. 35 On 12 September 1984 a Summary of Cabinet Decisions indicates that, with respect to the “Water Export Policy”, a decision was made in the following terms: “Approved the Minister to proceed with policy but a price differential is to be established for bottled water. Higher price for bulk water exports.” 36 On 7 December 1984, J.E. Farrell, the Deputy Comptroller of Water Rights, signed a Schedule of fees for water licences for Industrial purposes. One of the categories was “Export of Water.” At the end of the Schedule was a note: “For any use listed in this Schedule the application fee and annual rental shall not exceed $5,000.00 each.” This Schedule was not disclosed to Mr. Beach or any other representative of the plaintiff at the time it was issued. It was obtained through an application under the Freedom of Information Act in 1998, two years after the commencement of this legal action. 37 On 28 March 1985 Order in Council 630 came into effect, establishing the tariff for application fees and water rentals for rights to, and use of, water for the purpose of “commercial bulk water export by marine transport vessel”. The rates for this purpose were fixed at: an application fee of $1.50 per acre- foot for the amount applied for; an annual rental of $7.50 per acre-foot of water licenced; and a usage fee of $7.50 per acre- foot of water used. 38 On 4 April 1985 Mr. Beach wrote to the Comptroller of Water Rights, and asked, among other things, that the volume of water to be licenced pursuant to the plaintiffs’ application be reduced from 19,000 acre- feet per annum, to 9,226 acre- feet per annum. 39 On 16 April 1985 J. E. Farrell, Deputy Comptroller of Water Rights, wrote to the plaintiff, regarding its application for a water licence to use a maximum of 9,226 AFY from Freil Lake for industrial (bulk export of water) purposes, and indicated that an application fee of $13,839.00 and 1st year water rental of $69,195.00, plus fees of $20 for storage, and $66.70 for a Permit to Occupy Crown Land, less fees and rentals of $170.00 previously paid, resulting in a balance of $83,050, was owed by the plaintiff to the Province of B.C. He went on to say that the annual rental may range from $69,195 to $138,390:00. 40 On 18 April 1985 the Ministry of Lands, Parks and Housing wrote the plaintiff, approving its application for a disposition of land under the Land Act, offering the plaintiff a foreshore licence for a term of 3 years, Rain Coast Water Corp. v. British Columbia Leask J. 91

renewable at the discretion of the Crown for an additional 7 years. The offer letter did indicate the prospect that the licence would be convertible into a lease with a term of 30 years. 41 On 25 April 1985 the plaintiff wrote to the Ministry of Lands, Parks and Housing that discussions with Mr. Gerbrandt of that department led the plaintiff to believe the commitment would be for 10 years, and that the plaintiff anticipated this as a requirement, in order that the capital cost of construction, estimated at $1.5 million, could be amortised over 10 years. In the same letter, the plaintiff asked whether the ministry would make the commitment for 10 years. 42 On 15 May 1985 the Crown issued Aquatic Land Licence No. 232354 (the “Foreshore Licence”), covering an area of foreshore of Hotham Sound, below Freil Lake, to the plaintiff, with a term of 3 years subject to renewal for a further 7 years, to provide a ten-year term. The annual rent payable was $2892. The Foreshore Licence granted the plaintiff the right to occupy foreshore lands on Hotham Sound for the purpose of building and operating temporary and/or permanent works to facilitate the plaintiff’s project to divert water for bottling purposes and for the purpose of bulk water export from Freil Lake via marine transport vessels. 43 On 12 June 1985 the plaintiff asked the Provincial Government, in view of the comprehensive business plan the plaintiff had submitted, the very significant expenditures in time and funds that it had already made, and government policy to encourage private sector initiative to develop new business, to issue a water licence to the plaintiff to use 9,226 AFY from Freil Lake, subject to the plaintiff paying $13,839 in application fees (according to the tariff approved under Order in Council No. 630), by October 16,1985, and also asked the Crown not to require payment of water rentals (of $69,195) until October 16,1988 or until commencement of use of the water, whichever should occur first. 44 On 25 July 1985 the Minister of Environment advised the plaintiff that its proposal to pay only the application fee and defer the annual rental fees until water was being used (a) was not acceptable, (b) did not conform to the Water Act, and (c) would set a precedent which he was not prepared to entertain. 45 On 27 February 1986 the Deputy Comptroller of Water Rights issued Conditional Water Licence CWL64113 to the plaintiff, authorizing the storage and diversion of up to 1,125 Acre-feet/year of water. The initial term of the licence was fifteen years, and provided that the term of the 92 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

licence could be extended by the Comptroller upon application. This was the plaintiff’s export licence. 46 At the same time the Deputy Comptroller of Water Rights issued Conditional Water Licence CWL64114 to the plaintiff, authorizing the diversion of up to 20,000 gallons of water per day, for industrial use (bottling of water for sale). This was the plaintiff’s bottling licence. The licence did not have a fixed term. 47 On 6 June 1986 the initial term of Licence of Occupation No. 232354 was amended at the plaintiffs’ request, from three years to five years, with a renewal term of five years. 48 In May 1987 the Lands Branch distributed literature under the title of “CROWN LAND FOR GENERAL INDUSTRIAL DEVELOPMENT”- which stated that shore land was available by lease for 30 years at 8% of the land value, or by licence of occupation for 10 years at 7.5% of the land value, but, in spite of comprehensive submissions made by the plaintiff, the Lands Branch did not offer the plaintiff a 30 year lease in 1987. 49 On 14 July 1987 B.C. bulk water export licence application fees and rental rates were increased, by about 15% by way of Order in Council No. 1430; these new rates required rentals of $9.00 per acre-foot for export rights, plus an additional $9.00 per acre-foot payable on any of the licenced quantity actually used for export.

2. Western Canada Water (WCW) A. The Early History 50 Ocean Falls is a community on the B.C. coast. It was originally a company town owned and operated by Crown Zellerbach. In the early 1980’s the company failed and the B.C. Government established a Crown Corporation called the Ocean Falls Corporation (OFC) to take over and manage the assets located at Ocean Falls. A former Cabinet Minister named Ray Williston was the Chairman and President of OFC. 51 In the plaintiff’s conceptual proposal submitted to the Lands Branch on January 17, 1984 there is a brief discussion of the possibility of exporting water from Ocean Falls including mention of a telephone conversation between Mr. Beach and Ray Williston on that subject. In a letter to the Water Management Branch on February 23, 1984 Mr. Beach states that his company has considered Ocean Falls as a source for exporting water. He considered Freil Lake a preferred alternative because Ocean Rain Coast Water Corp. v. British Columbia Leask J. 93

Falls was 250 km further north than Hotham Sound and the extra dis- tance would increase the time and expense of shipping water to Southern California. 52 On 12 July 1984, Mr. Beach wrote to Ray Williston, reminding him of a telephone conversation several months before and asking to be “kept appraised of all relevant information concerning availability of water for export from Ocean Falls. Mr. Williston replied in a letter dated 18 July, 1984 in which he stated: In the last two years there has been no further productive activity with relation to the export of potable water from Ocean Falls. ... Ocean Falls Corporation has not taken the initiative to develop trade in water. ... Water quality has been measured on several occasions ... Quality has been very high. ... Water quantity for purposes of export can be considered to be almost unlimited. ... I would doubt that I have been helpful. 53 In May 1985, the Provincial Cabinet decided to proceed with a “nor- malization program” regarding OFC’s assets. They authorized Mr. Wakabayashi to: a) Evaluate various development proposals for the Ocean Falls area; and b) Proceed with negotiations on water exports, ensuring that “the Crown” receives a fair return for “its” dock and wharf facilities in any current or future agreements for the export of water from Ocean Falls. [Emphasis added] 54 On August 14, 1985, Mr. Annett wrote to Robert McClelland, Min- ister of Industry and Small Business Development, to confirm that he would be meeting with the Minister accompanied by his solicitor, Lyall Knott of Clark Wilson. Mr. Annett stated: On Friday, August 16 I will be meeting with you, accompanied by Mr. Lyall Knott of the law firm of Clark Wilson to discuss a new resource project to be located in Ocean Falls, B.C. This project in- 94 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

volves the extraction of freshwater for bulk tanker shipment to Saudi Arabia. I am enclosing a brief outlining for you the details of this proposal. 55 On the Minister’s copy of the letter is a handwritten note “by M.R. Annett” which I am satisfied refers to Mr. Annett’s mother. 56 Trillium Projects Ltd. (“Trillium”) was the project management consultant concerning the disposition of the assets held by OFC for the Prov- ince. It acted under the direction of Mr. Wakabayashi. On September 6, 1985, Mr. Bigelow of Trillium made a proposal concerning the bulk export of water to the Annetts through their lawyer at Clark Wilson. He stated that this proposal would be made not only to their company but to the other two parties who have expressed an interest. The proposal was: A. You will advise OFC of the quantity of water for bulk export which you wish to apply for... B. OFC will in turn apply to the Province of B.C. for an amendment to its water licence to permit the export of the water quantity set out above.... OFC has reason to believe that such an amendment will be processed quickly. C. The buyer will design and construct works necessary for tap- ping, transporting and ship loading of the water, provided that the design and specifications must first be approved by OFC and construction of the works inspected by OFC D. In consideration for item (C) above, OFC will commit to sell water for export purposes to no other party for a period of one year from the date of the agreement, and will resell the water to the buyer for that period.... E. Although OFC will be released from its restriction upon sell- ing water to others after one year, it will commit to continue to make water available to the buyer at the agreed upon charge and to sell water to no other party for less. F. All interested parties will be given until September 24th, a reasonable length of time, to respond to this proposal. Time is critical for us and therefore we will select the respondent which is first to nominate a quantity of water for application purposes... 57 The letter demonstrated Trillium’s knowledge of several key facts: 1. OFC had a licence for the entire water capacity of the Link Lake reservoir for the purpose of generating “hydraulic energy” (sic); Rain Coast Water Corp. v. British Columbia Leask J. 95

2. OFC’s licence did not include the right to sell water to others for export; 3. The legislation requires that the exporter have land tenure to access the water; and 4. One solution to that issue would be for OFC to apply for the licence to export and resell the water to a second party. 58 Trillium’s proposal was that the exporting party or parties would pay to OFC in trust the necessary fees under O.I.C. 630 (i.e. application fee of $1.50 per acre foot plus the first year annual rental of $7.50 per acre foot). OFC would then apply for an amendment to its water licence to permit the export of the water contracted to the buyer. Amusingly, the letter stated: “OFC has reason to believe that such an amendment will be processed quickly.” The only remaining charge for the first year would be the balance of provincial fees, i.e. $7.50 per acre foot of water used. 59 W.C.W. was incorporated on October 2, 1985. 60 There is a dispute between the parties as to how W.C.W. became aware of the opportunity to obtain Link Lake Water through OFC and the Government of B.C. Mr. Annett’s testimony was that he saw an advertisement in the Vancouver Sun. No documentary evidence was provided by the defendants nor did any witness associated with the government, OFC, Trillium, or Mr. Wakabayashi give any such evidence. The plaintiff denies the existence of any such advertising. 61 The plaintiff, through Mr. Beach, was not made aware of the discussions between the Annetts, the Government of B.C. and its advisors. Both Mr. Beach and Mr. Annett testified to some discussions between them in December 1985. Their evidence was not consistent and I am unable to decide on a balance of probabilities what transpired. No agreement was reached between them and the two corporations never had business dealings. 62 On December 11, 1985 Mr. Williston wrote to Mr. Annett of WCW at his lawyer’s office confirming that it would grant to WCW a right to extract up to 225 acre/feet of water per year for the purpose of export and that it would cooperate to increase the volume if there was market demand. The agreement was subject to the B.C. Government’s approval of OFC’s application to amend its water licence to permit marine bulk export. 63 Meanwhile, one of the other recipients of Trillium’s proposal, Pacific Rim Water Resources, wrote to the Premier complaining about the way it 96 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

had been treated. The Minister of Industry and Small Business Develop- ment, Robert McClelland, wrote to Pacific Rim on February 12, 1986 stating: As you have been kept advised, OFC is presently involved in negotiations on an agreement with another proponent, but have on my instructions left provision in the agreement to allow for an arrangement to be negotiated with [you] ... for access to the water and infrastruc- ture facilities at Ocean Falls ... The final decision on the agreement will ultimately be made by the Cabinet and myself, based on input and recommendations from Ocean Falls Corporation and my staff.” [Emphasis added] 64 He copied his letter to the Premier, Minister Alec Fraser, Mr. Wakabayashi and Mr. Williston. 65 On that same day, February 12, 1986, the Comptroller issued a conditional water licence to OFC in which he authorized OFC to “divert water” from Link River of 552.6 AFY, the licence being “appurtenant to the export project of the licencee [OFC] at the retractable loading facilities” at Ocean Falls. That licence also authorized OFC alone to perform works being “diversion structure, pipe and loading facilities”. The term of the licence was 15 years, which could be extended by the Comptroller on application. That licence covered only a small portion of the available water. 66 To be clear the Comptroller granted that water licence to OFC alone on the basis that OFC alone intended to and would carry on the bulk water export operation itself. There was no mention of WCW being permitted to divert or to use any of the licenced water.

B. The WCW Agreements 67 The first WCW Agreement was dated March 21, 1986. It was entered into between OFC and WCW, with the Province’s approval and at its direction. OFC was then wound up 10 days later and its assets and liabilities were assumed by the Province. 68 The Recitals to the 1986 WCW Agreement provided in part that: WCW wishes to purchase...water from OFCs water licence in the Link Lake reservoir area and acquire the right to transport and load such water by pipeline to facilitate marine bulk export of such water: 69 WCW was not required to comply with any of the Water Act requirements including: Rain Coast Water Corp. v. British Columbia Leask J. 97

1. Applying for a Water Act license; 2. Owning an interest in land; 3. Publicizing its applications to permit competitors or members of the public to raise objections; and 4. Most importantly, paying the annual rental fee in advance. 70 WCW agreed to pay to OFC $2,025.00 as a fee for Water Act charges; $150,000.00 as a minimum fee at the rate of $10,000.00 per month; fees equivalent to Water Act charges annually in arrears; and also a separate royalty. 71 The agreement provided for a three year “exclusive period” during which OFC agreed not to directly engage in the export of water or sell any water for export purposes to anyone other than Pacific Rim Water Resources (who appear to have taken no advantage of this provision). 72 On February 11, 1987 a second WCW agreement was entered into between WCW and the Province of B.C. - represented by the Minister of Forests and Lands. 73 The Recitals to the 1987 WCW Agreement provided in part as follows: [WCW and the Province] wish to amend the [1986 WCW] Agree- ment to reflect the assumption of OFC’s obligations by the Province and to clarify the nature and extent of the exclusivity provisions of the [1986 WCW] Agreement. The operative provisions of the 1987 WCW Agreement provided in part as follows: S.1: The [1986 WCW] Agreement was amended by deleting all ref- erences to “OFC” and substituting therefor “the Province”, which term shall mean her Majesty the Queen...as represented by the Min- ister of Forests and Lands. S.6: Notwithstanding the date of execution and delivery of this amending agreement, it shall be deemed to have come into effect on 21 March 1986. 74 A new section extended the application of the agreement “to all other water available from Link Lake for bulk export purposes”. 75 On December 21, 1988, the Comptroller issued conditional water licences #68821 and 68822 to the Minister of Forests and Lands. One authorized the diversion of 20,000 AFY and the other 22,635.3 AFY, for a total of 42,653.3 AFY. 98 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

76 Both of those water licences authorized the Minister alone “to divert water” from the Link River, each of them being “appurtenant to the export project of the licencee [Minister] at the loading facilities” at Ocean Falls. The licences also authorized the Minister alone as the licencee to carry out works being “diversion structure, pipe and loading facilities”. The term of each licence was 15 years, which could be extended by the Comptroller on application. 77 Accordingly, those water licences were granted to the Minister alone on the basis that Minister alone intended to and would carry on the bulk water export operation itself. There was no mention of WCW being permitted to divert or to use any of the licenced water. Again, those licencees covered only a portion of the available water from that source. 78 The third WCW Agreement was dated September 25, 1989. It was entered into between WCW and the Province, as represented by the Min- ister Responsible for Crown Lands. Among other things, it provided WCW with a greater supply of water and extended its exclusive rights to bottling water as well. 79 The new agreement had a 25 year term and WCW had an option to renew it for 10 years. The ‘exclusive period’ was defined to mean until March 31, 1990. 80 The agreement provided that after the expiry of the exclusive period the Province of B.C. could “subject to the approval of the Comptroller of Water Rights and to the consent of WCW” transfer the water licences to WCW. However, if the Comptroller did not approve the transfer, the agreement would continue in force with respect to any of the licences for which the transfer was not approved.

C. Other Government Actions 81 Aside from the favorable terms in the agreements between the Prov- ince and WCW, there is evidence of other acts by provincial authorities favouring WCW. 82 On May 17, 1990, Mr. Reynolds, Minister of Environment, wrote 10 letters to various officials of the city of Santa Barbara on behalf of WCW in order to promote it over its competitors including the Plaintiff. Mr. Reynolds wrote that: I have no doubt that the Western Canada Water Proposal stands out among the submissions you have before you.... In all of Canada it is the sole company authorized to deliver water from the only environ- mentally protected sites immediately adjacent to a deep-water port. Rain Coast Water Corp. v. British Columbia Leask J. 99

Over the past five years I have witnessed personally the ability of Western Canada Water and its world class team of experts to provide innovative solutions to the world’s water shortages by delivering high-quality water from our Province’s plentiful renewable water resources” We urge you to give serious consideration to Western Canada Water’s proposal to provide water to the City of Santa Barbara. 83 The evidence is clear that their letters were drafted by Mrs. Annett, President of WCW, and Mr. Annett confirmed in cross examination that it was his mother’s handwriting on the bottom of the draft letter in a note that began: John, Thanks for going to bat for us again ... 84 In March 1991 a series of actions by the provincial authorities ap- peared to be favouring WCW once again. On 04 March 1991 the Goleta Water District of California issued a detailed Request for Proposals on water to be delivered by marine transport in volumes up to 10,000 AFY to be delivered through mid - 1998. 85 On that same day, the plaintiff filed an application for an additional bulk water export licence, in the amount of 15,054 AFY from Freil Lake, and indicated that the water was needed in connection with supply to Goleta. 86 On March 8th, Premier Vander Zalm wrote to Katherine Crawford, President of the Board of Directors of the Goleta Water District. The text of his letter read: I wish to confirm the details of the water supply agreement between Western Canada Water and the Province of British Columbia. Western Canada Water and the Province of British Columbia, represented by the Minister of Crown Lands, have signed a contract with respect to ensuring a secure supply of water for the Company. The Contract, renewed in September of 1989, calls for up to 43,000 acre/feet per year of water that can be shipped in bulk or bottled form from Ocean Falls, British Columbia. The Contract is in effect for 25 years and can be renewed at the option of the Company, with the permission of the Province. 87 In her evidence given to the Court, Ms. Crawford said that the letter made her “very uneasy”. Asked to explain, she said: Well, this was a commercial transaction between us, in California, and whichever entity we chose to provide us with water. I did not 100 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

find it appropriate for Premier Vander Zalm to insert himself into the process. I didn’t think it was appropriate. 88 The board appointed a committee which reviewed 4 proposals to supply Goleta with tendered water. The four candidates were the plaintiff, WCW, Snowcap (another B.C. Company) and Sun Belt (a California company intending to obtain B.C. water through the plaintiff and Snow- cap). The Committee recommended that the Board negotiate with WCW. The Goleta Water Board met on March 14, 1991, considered the Com- mittee’s recommendation but decided to commence negotiations with Sun Belt, encouraging them to work with one of the other bidders prefer- ably the plaintiff. 89 The next day, Mrs. Annett, President of WCW wrote to Premier Van- der Zalm, copied to Minister Veitch and Serwa. In her letter she said: I have two primary concerns. Firstly, Sun Belt made it clear in the public meeting last night that the two small Canadian companies with which, they are dealing (Aquasource and Snowcap) are, in effect, “fronts” for a purely American operation, put in place to avoid Brit- ish Columbia’s restriction on transferring water licences to non- Canadians. The issue of this restriction and how Sun Belt plans on getting around it was discussed in great detail in a public meeting last night. Aquasource and Snowcap are both small or non-existent companies trying to merely sell their water to Sun Belt. Our concern is that we know from our dealings with the provincial government since 1985 that it is important that a Canadian company develop this business. ... I hope that this information is useful to you in your governments’ decision regarding Sun Belt, Snowcap and Aquasource’s request for additional water licences. 90 That same day, March 15, 1991 there is a Cabinet Debriefing Note referring to Water Export Licences saying: “O.I.C. is planned to put a moratorium on licences.” The moratorium was imposed March 18th effective March 20th. 91 Also on March 15, 1991 the Minister of Lands, David Parker, wrote to Mrs. Annett of WCW: In the spring of 1990, my cabinet colleagues and I decided not to extend exclusivity of source to Western Canada water at Link Lake as that would be inconsistent with governments’ current water management policies. At that time I also indicated my Ministry’s intention to fully cooperate with Western Canada Water, regarding the issues within our Rain Coast Water Corp. v. British Columbia Leask J. 101

water sales agreement. The time has come to migrate Western Can- ada Water to more conventional means of accessing the water resources at Link Lake. By copy of this letter I am instructing my regional director in Wil- liams Lake, Mr. Steve Mazur, to take the steps necessary to transfer for the water licences we currently hold on your behalf directly to which (sic) Canada Water. 92 In Goleta, negotiations were never completed with Sun Belt. One of the reasons was that the seven year drought ended with, in the words of Ms. Crawford, “a stupendous amount of water.” Well, there were two reasons why we decided, at that point, to dis- card the idea of tankering. One was the rain, but because of the hit and miss weather that we have down there and the knowledge that droughts come, inevitably, we were looking at a lot of different things. And it would have still been on the table, except at that point we started getting intimations of all sorts of unusual decisions and emphases by the government here in BC, and it became clear that it was going to be a very difficult row to hoe to — they just didn’t seem to be operating with all their hands on the table, I would say. And we couldn’t take that on, under the circumstances. We had too many other projects that we were — we were working on. We had too big a problem that we had to solve, and we couldn’t have someone on the opposite side of a — a source behaving in a way that we found unpredictable and ultimately unreliable. 93 On May 10, 1991 the Province’s directive on bulk water export stated that pending policy review and direction, BC Lands would not approve Land Act applications for bulk water export and the Ministry of Lands and Parks was required to be in step with the moratorium and public review process.

3. Fact Finding and Credibility 94 Much of the evidence in this case was put before the Court in the form of contemporary documents. This simplified the task of finding facts and where no challenge was made to the accuracy of contemporary documents. I have generally accepted them at face value. 95 There are only three witnesses I feel obliged to discuss in terms of credibility: Colin Beach, Katherine Crawford, and William Annett. 102 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

1. Colin Beach 96 Counsel for the defendants was critical of Mr. Beach as a witness. He was not only the principal witness for the plaintiff. He was by far the most significant witness in the entire case. His direct evidence took six days and his cross examination was equally lengthy. 97 I found him to be a credible witness. His recollection of events over more than 10 years which occurred between 20 and 30 years before he gave evidence was impressive. Of course, he didn’t remember everything and sometimes he was slightly discursive but he impressed me with his efforts to relate the whole story. In his position, many witnesses might have been tempted to overlook their own past misjudgments. I did not believe that he did that. I am satisfied that he did his best to tell a long complicated story in a truthful manner.

2. Katherine Crawford 98 Ms. Crawford was cross examined with suggestions concerning her subsequent contacts and friendship with Mr. Beach after she left her post as President of the Goleta Water District. In submissions, counsel for the defendants made no suggestion that her evidence was anything other than truthful. I found her to be a frank and forthright witness. Nothing in her direct or cross-examination caused me to have any doubts about her ve- racity or the accuracy of her recollection of relevant details. In short, I found her to be a credible witness.

3. William Annett 99 I did not find Mr. Annett to be a credible witness. His account of how he and his mother commenced their dealings with the Government was self-contradictory. He said that he saw an advertisement in the Vancou- ver Sun concerning the opportunity to obtain bulk water from Link Lake at Ocean Falls. He said the opportunity was “widely publicized”. There was no confirmation of these assertions from any other witness nor were there documents to confirm his story. Colin Beach denied ever seeing any such publicity. Tellingly, the documentary evidence shows Mr. An- nett, his mother, and his lawyer having a meeting with Robert McClel- land, Ministry of Industry and Small Business Development, as their first contact. The evidence is clear that the Cabinet had authorized Mr. Wakabayashi to deal with water exports from Ocean Falls; Ray Wellis- ton was President of OFC; and Trillium Projects Ltd. was the project management consultant concerning the disposition of OFC assets under Rain Coast Water Corp. v. British Columbia Leask J. 103

the director of Mr. Wakabayashi. If Ocean Falls water had been adver- tised, the named contact would not have been Minister McClelland. 100 His answers to many specific questions put to him on relevant topics was “I don’t recall”. 101 The most damaging aspect of his evidence concerned dealing with the Government. Essentially he denied high level political contact with the Government and claimed to have no knowledge of his mother’s contacts with John Reynolds, Premier Vander Zalm and other Cabinet Members. Considering that he and his mother were the two principals of WCW from its inception and throughout the relevant period, this evidence was frankly incredible. 102 On the key issues he was called to Court to explain, I found him to be an untruthful witness.

4. Failure to call Defence Witnesses 103 The plaintiff’s counsel urge me to draw an adverse inference against all the defendants for their failure to testify (except Mr. Vietch, who is deceased) in accordance with the principles outlined in Sopinka, The Law of Evidence in Canada, 2nd edition quoted with approval by Pearl- man, J. in Rakhra v. Jhutty, 2012 BCSC 882 (B.C. S.C.) at para. 59 In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it. 104 I agree with their submission and have drawn an adverse inference against the Province of British Columbia for not calling Mr. William Far- rell to explain his lack of action in response to Tom Smith’s memorandum of March 13, 1984 and his failure to disclose the $5,000 limit affecting the export of water in the December 7, 1984 Schedule of Fees. 105 I have also drawn an adverse inference against the Province of British Columbia and Premier Vander Zalm for the failure of the ex-premier to testify or call other witnesses to testify with respect to the timing of the 104 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

initial O.I.C. establishing a moratorium on water licences for the bulk export of water.

Analysis 1. Limitation Act 106 The Crown defendants plead, and rely upon, the Limitation Act, R.S.B.C. 1996, c. 266. They concede that the applicable limitation period is six years. 107 The plaintiff’s position is that the limitation period should be postponed on the basis that the evidence at trial showed that the defendants had concealed documents necessary for the plaintiff to ascertain that it had a reasonable prospect of success. The plaintiff also alleges that the concealment was willful. Examples cited by the plaintiff include the $5,000 Water rate schedule of December 1984 and other key Govern- ment documents not disclosed to the plaintiff until 2005 or 2006. 108 This is not the first time that the Court has had to deal with a limitation argument in this case. In Rain Coast Water Corp. v. British Colum- bia, 2008 BCSC 1182 (B.C. S.C.), the Court dealt with a Rule 19(24) application by the Crown defendants. On the limitations issue the defendants were unsuccessful, in part for the procedural reason that statutory limitation is a defence pleading that does not arise on a 19(24) application. A second issue discussed in that ruling was the possibility that the time limitation was postponed by virtue of s. 6(4) of the Limitation Act. At that time the Court was obliged to rely upon the plaintiff’s pleading that certain relevant documents had not been disclosed until 2005 or 2006. After hearing the evidence and submissions at trial I am satisfied that document disclosure of important relevant documents was delayed to an extent that the defendant’s reliance upon the Limitation Act must fail. 109 Another branch of the defendant’s limitation argument in 2008 was that certain amendments to the plaintiff’s pleadings amounted to new cause of action. On that issue, I said, at para. 36: the plaintiff’s current civil claims are based on the same facts as were pleaded in the original statement of claim and at para. 38: ... I find that the original statement of claim was sufficient to put the government on notice of the essence of the plaintiff’s civil claims These rulings were not appealed and are binding on the defendants. Rain Coast Water Corp. v. British Columbia Leask J. 105

2. Negligent Misrepresentation A. The Law 110 The requirements for a finding of negligent misrepresentation were set out by the Supreme Court of Canada in Queen v. Cognos Inc., [1993] 1 S.C.R. 87 (S.C.C.), at para. 33, as follows: a. There must be a duty of care based on a “special relationship” between the representor and the representee; b. The representation in question must be untrue, inaccurate, or misleading; c. The representor must have acted negligently in making said misrepresentation; d. The representee must have relied, in a reasonable manner, on said negligent misrepresentation; and e. The reliance must have been detrimental to the representee in the sense that damage resulted.

B. The Plaintiff’s Position 111 The plaintiff’s submissions with regard to this tort were primarily factual. The plaintiff relied on the non-disclosure of the $5,000 rate for the export of water. It was submitted that other examples of negligent misrepresentation include: (c) the Province misrepresented that the lawful fees and rates were substantially in excess of the lawful rates that had been established by the $5,000 Schedule; (d) the Province misrepresented the appurtenancy requirement; (e) the Province misrepresented to the plaintiff its statutorily mandated precedence; (f) the Province misrepresented to the plaintiff at the July 1989 meeting that it was being treated the same as WCW, which Mr. Roberts admitted at his discovery; (g) the Province misrepresented to the plaintiff at the December 8, 1990 meeting that it would reinstate the plaintiff’s Foreshore Licence; (h) the Province’s failure to provide the terms of reference for Ocean Falls Corporation (“OFC”) (i) The Province misrepresented to the plaintiff that WCW had been billed for 1979 Water Act rentals of $441,275 for 1992; 106 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

(j) The Province misrepresented to the plaintiff that a water reserve could not be created for the benefit of a water exporter. 112 As for the need to show a duty of care based on a “special relationship” between the parties, the plaintiff’s position was that it justifiably relied on the defendants’ apparent trustworthiness and professionalism as well as what they represented, and the defendants knew this throughout. Those matters and the ongoing correspondence between the plaintiff and the Province, which included amongst others, business plans and engi- neering works, and the plaintiff’s field trips to Freil Lake with the Pro- vincial representatives, established a relationship of proximity. 113 The plaintiff relied upon the discussion of proximity by McLachlin J. in Canadian National Railway v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021 (S.C.C.) at pp. 1152-1153: In summary, it is my view that the authorities suggest that pure economic loss is prima facie recoverable where, in addition to negligence and foreseeable loss, there is sufficient proximity between the negligent act and the loss. Proximity is the controlling concept which avoids the spectre of unlimited liability. Proximity may be established by a variety of factors, depending on the nature of the case. To date, sufficient proximity has been found in the case of negligent misstatements where there is an undertaking and correlative reliance (Hedley Byrne); where there is a duty to warn (Rivtow); and where a statute imposes a responsibility on a municipality toward the owners and occupiers of land (Kamloops). But the categories are not closed...

C. The Defendants’ Position 114 The defendants take the position that the plaintiff has failed to establish a proper evidentiary foundation for the tort of negligent misrepresentation for a number of reasons: 1. No duty of care was owed by the defendants to the plaintiff because: a. no relationship of proximity existed between the Province and the plaintiff; and b. in any event a duty of care should not be recognized for policy reasons. 2. The Province made no inaccurate, untrue or misleading misrepresentations. 3. The defendants did not act negligently. Rain Coast Water Corp. v. British Columbia Leask J. 107

4. The plaintiff did not reasonably rely on any statements of the defendants.

D. Discussion 115 I am in substantial agreement with the defendants’ submissions that the regulatory statutory scheme under the 1979 Water Act and the Land Act, R.S.B.C. 1979, C. 214 (“Land Act”) preclude the establishment of a “special relationship” between the plaintiff company and the civil servants and Cabinet Ministers with whom Mr. Colin Beach had dealings. 116 In the present case, there is no private relationship of proximity created by the legislation so as to give rise to a prima facie duty of care. The 1979 Water Act, Land Act, and related legislation are aimed at regulating access to provincial resources, and as such, are not intended to create private law tort duties. 117 In Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 (S.C.C.), the court presented two examples — regulating an industry and removing children from harmful environments — each of which may involve interactions with an individual applicant in the context of a statute aimed at a public purpose. The court held that where an alleged duty of care is found to conflict with an overarching statutory or public duty, the Court may hold that no proximity arises (at paras. 44- 45). 118 In Cooper v. Hobart, 2001 SCC 79 (S.C.C.), at paras. 43-44, the Su- preme Court of Canada, in analyzing whether the regulatory scheme governing mortgage brokers created sufficient proximity between the Regis- trar and investors to ground a prima facie duty of care, held that the factors giving rise to proximity must arise from the statute under which the Registrar was appointed. The Registrar’s duty under the statute was to the public as a whole, and a duty to individual investors would potentially conflict with the Registrar’s overarching duty to the public. The facts in this case are similar to the facts in Hobart, in that, the 1979 Water Act and Land Act create a duty to the public. A duty to an individual licencee would potentially conflict with the Province’s duty to the public as a whole regarding management of and access to provincial resources, and further, may create a situation of conflicting duties as between various licencees under these Acts. 119 Where a duty of care is alleged to arise from interactions between the claimant and government, governing statutes are still relevant to the analysis (Imperial Tobacco at para. 45). Where an alleged duty of care con- 108 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

flicts with an overarching public duty, the court may find that no proximity arises (Imperial Tobacco at para. 45). In the present case, it would be inconsistent to find that a series of specific interactions between Provin- cial Government servants and the plaintiff could give rise to a special relationship and a duty of care that may conflict with the general duty to the public to manage provincial resources in accordance with the statutory scheme. 120 I find as a fact that in the present case there is no “special relationship” between the plaintiff and any of the defendants. In the absence of a “special relationship” giving rise to a duty of care between the defendants and the plaintiff, the plaintiff’s claim based on negligent misrepresentation must fail.

3. The Unlawful Means Tort A. The Law 121 The Supreme Court of Canada in Bram Enterprises Ltd. v. A.I. Enterprises Ltd., 2014 SCC 12 (S.C.C.) has recently clarified the law with respect to this tort. Cromwell, J. speaking for the Court said at para. 5: In summary, the issues and my conclusions are these: What is the scope of liability for the tort of causing loss by unlawful means? In light of the history and rationale of the tort and taking into account where it fits in the broader scheme of modern tort liability, the tort should be kept within narrow bounds. It will be available in three- party situations in which the defendant commits an unlawful act against a third party and that act intentionally causes economic harm to the plaintiff. (Other torts remain relevant in two-party situations, such as, for example, the tort of intimidation.) (1) What sorts of conduct are considered “unlawful” for the purposes of this tort? Conduct is unlawful if it would be actionable by the third party or would have been actionable if the third party had suffered loss as a result of it. 122 Cromwell, J. further explained his views at para. 26: [26] The scope of the unlawful means tort depends on the answers to three questions. First, does the unlawful conduct have to be actionable by the person at whom it is immediately directed? In my view, the conduct must be an actionable civil wrong or conduct that would Rain Coast Water Corp. v. British Columbia Leask J. 109

be actionable if it had caused loss to the person at whom it was directed. Second, is there a requirement that the unlawful means not be otherwise actionable by the plaintiff? I propose to answer this question “no”. Third, should the definition of “unlawful means” be subject to principled exceptions? I would also answer this question in the negative. While the approach outlined by these answers leaves only a narrow scope for liability, my view is that it is most consistent with the history and rationale of the tort as well as with its place in the modern scheme of liability for causing economic harm. 123 At para. 95, Cromwell, J. explains the intention requirement for the unlawful means tort: 95 The Court of Appeal of England in Douglas v. Hello! Ltd., [2005] EWCA Civ 595, [2005] 4 All E.R. 128, one of the appeals heard with OBG, identified five types of intention which might be relevant in this context: (a) an intention to cause economic harm to the claimant as an end in itself; (b) an intention to cause economic harm to the claimant because it is a necessary means of achieving an end that serves some ulterior motive; (c) knowledge that the course of conduct undertaken will have the inevitable consequence of causing the claimant economic harm; (d) knowledge that the course of conduct will probably cause the claimant economic harm; (e) knowledge that the course of conduct undertaken may cause the claimant economic harm coupled with reckless indifference as to whether it does or not: para. 159. In my opinion, the first two of these species of intention represent the core intention required for the unlawful means tort. They describe cases in which the tortfeasor is “aiming at” or “targeting” the plaintiff: ... It is the intentional targeting of the plaintiff by the defendant that justifies stretching the defendant’s liability so as to afford the plaintiff a cause of action. It is not sufficient that the harm to the plaintiff be an incidental consequence of the defendant’s conduct, even where the defendant realizes that it is extremely likely that harm to the plaintiff may result. Such incidental economic harm is an accepted part of market competition.

B. Procedural History in this Case 124 The trial of this case, including all the evidence and submissions, took place before the Supreme Court’s decision in A. I. Enterprises. Conse- quently the focus of the legal arguments did not fit the new legal land- scape created by A. I. Enterprises. For that reason, I gave the parties the opportunity to make new written submissions. 110 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

C. The Plaintiff’s Position 125 The plaintiff’s position is that, on the facts of this case, the defendants “clearly committed” the unlawful means tort against the plaintiff in several different ways. The plaintiff submits that the principal of the plaintiff company, Colin Beach, fulfills the role of a Party “B” in the A. I. Enter- prises analysis. In the plaintiff’s submission, alleged misrepresentations made by various defendants to him “in his own right” as well as alleged misfeasance in public office torts committed against him “in his own right” satisfy the three party requirement of A. I. Enterprises. The plaintiff also submits that the actions of Ministers of the Crown favouring WCW in the bidding for the Santa Barbara and Goleta Water District Requests for Proposals caused Sun Belt Water Inc. and Snowcap Waters Ltd. to be Parties “B” in the A.I. Enterprises analysis and also were actions intended to harm the plaintiff.

D. The Defendants’ Position 126 The defendants submit that they are not liable for committing this tort for a number of reasons: 1. The defendants did not act in a manner specifically directed at the plaintiff with the intent of detrimentally affecting the plaintiff’s economic interests. 2. The defendants did not act unlawfully. 3. No acts of the defendants caused economic loss or injury to the plaintiff. 127 In summary, the defendants say there was no ‘unlawful conduct’ on the part of the defendants, or any of them. There was certainly no ‘unlawful conduct’ in the restricted sense described in A. I. Enterprises. There were no third parties at whom unlawful conduct was directed as part of a scheme to harm the plaintiff. Absent unlawful conduct and targeting third parties, it is clear that there are no third parties who have or had an action against the defendants, or any of them, as a result of a scheme to harm the plaintiff. And, finally, it is clear that there was no improper intention of deliberately causing harm to the plaintiff. 128 As to Colin Beach being a third party, the defendants say that he is and always has been the principal and guiding mind of the plaintiff. At no time did he ever assert or represent to anyone that he was acting in his personal capacity. The applications were made by the plaintiff company; the licences were issued to the plaintiff company; and all of the represen- Rain Coast Water Corp. v. British Columbia Leask J. 111

tations made to third parties by the plaintiff with respect to all of the plaintiff’s projects were made by the company. The attempts to raise fi- nancing were made by the or on behalf of the plaintiff company. There is no evidence to support the proposition that Mr. Beach was dealing in his personal capacity with the Provincial Government in relation to any matters, at any material time. 129 Most of the rest of the defendant’s submissions consist of denials: (a) They deny there was any unlawful conduct directed at Sun Belt Water Inc. or Snowcap Water Ltd. (b) They deny that Sun Belt or Snowcap have any right of action against the defendants; (c) They deny that the plaintiff suffered any injury from conduct directed at third parties; and (d) They deny that the defendants deliberately targeted the plaintiff or that any of the defendants had any intention of inflicting harm on the plaintiff.

E. Discussion 1. Colin Beach as a Third Party 130 I find myself in complete agreement with the defendants on this issue. Colin Beach was the main witness for the plaintiffs. His trial evidence and the documentary evidence introduced through him provided a consistent narrative. The theme of that narrative was the harm done to the plaintiff company by the various defendants. He was an officer and director of the company and he interacted with the various defendants on behalf of the company. I reject the plaintiff’s submissions on this subject.

2. Sun Belt Water Inc. or Snowcap Water Ltd. as Third Parties a. No unlawful conduct 131 The evidence makes it clear that Mrs. Annett, the principal of WCW drafted the letters of support sent by John Reynolds, Minister of Environ- ment to various officials of the city of Santa Barbara on May 17, 1990 at the time when WCW, the plaintiff, Sun Belt and Snowcap were involved in competitive bidding to supply B.C. water to the city. In March 1991 when the Goleta Water District put out a Request for Proposals to supply bulk water, Premier Vander Zalm wrote to the Water District supporting WCW. Then Mrs. Annett wrote to the defendant Premier Vander Zalm copied to Ministers Veitch and Serwa seeking to block Snowcap and the 112 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

plaintiff from getting additional water licences (in order to supply Goleta). Within 3 days the moratorium on further water licences was issued as an O.I.C. Combining this evidence with the absence of any evidence on behalf of the defendant’s denying improper conduct, I find that there was unlawful conduct directed at Sun Belt and Snowcap.

b. No right of action 132 The defendants quote para. 45 of A. I. Enterprises where Cromwell, J. states that “criminal offences and breaches of statute would not be per se actionable under the unlawful means tort”. Of course, in the same paragraph Cromwell, J. also says “the tort would be available if, under common law principles, those acts also give rise to a civil action by the third party.” On the evidence before me I find that Sun Belt and Snowcap could have brought actions for misfeasance in public office if they had suffered loss as a result of the defendant’s conduct A. I. Enterprises, para. 76.

c. Injury to the Plaintiff 133 The plaintiff had an agreement with Sun Belt to supply water if Sun Belt got the Goleta Water District contract. According to the evidence of President Katherine Crawford of the Goleta Water District, one of the reasons for not concluding a contract with Sun Belt was the strange behaviour of the B.C. Provincial Government. I am satisfied that the unlawful activities directed at Sun Belt caused an economic loss to the plaintiff.

d. Intention to Harm the Plaintiff 134 On the evidence before me I find as a fact that ministers of the Pro- vincial Government, including the Premier of the Province were rendering material assistance to WCW and its principal, Mrs. Annett, in the competition to secure water supply contracts with various California water districts. Mrs. Annett’s letter to the Premier dated March 15, 1991 names the plaintiff as a company whose activities she wishes the B.C. Government to hinder. Three days later the Province imposed a moratorium on further water licences which adversely affected the plaintiff. In my view this behaviour falls within Cromwell, J.’s formulation of one of the intentions representing the “core intention required for the unlawful means tort” — that is “an intention to cause economic harm to the claimant because it is a necessary means of achieving an end that serves some ulterior motive” A. I. Enterprises para. 95. The ulterior motive was providing assistance to WCW. Rain Coast Water Corp. v. British Columbia Leask J. 113

F. Conclusion 135 I am satisfied that the plaintiff has established that the defendants Bill Vander Zalm and the Province of B.C. have committed the unlawful means tort to the plaintiff’s detriment based on the imposition of the moratorium on water licences timed to benefit WCW in its dealings with the Goleta Water District.

4. Should the Principles Enunciated in Bhasin v. Hrynew Be Applied in this Case? 136 Another important Supreme Court of Canada case that was decided after closing submissions in this case was Bhasin v. Hrynew, 2014 SCC 71 (S.C.C.) Cromwell, J. summarized the principles discussed in that case: (1) There is a general organizing principle of good faith that un- derlies many facets of contract law. (2) In general, the particular implications of the broad principle for particular cases are determined by resorting to the body of doctrine that has developed which gives effect to aspects of that principle in particular types of situations and relationships. (3) It is appropriate to recognize a new common law duty that applies to all contracts as a manifestation of the general organizing principle of good faith: a duty of honest performance, which requires the parties to be honest with each other in relation to the performance of their contractual obligations. 137 When asked to make further written submissions concerning the implication of A. I. Enterprises, counsel requested an opportunity to discuss Bhasin, I granted that request.

A. The Plaintiff’s Position 138 The plaintiff’s position is that Bhasin has wide application in the case at Bar. (a) It provides the plaintiff with an additional, highly effective and stand-alone remedy against the Government, in contract, covering important ground which had previously been covered substantially by the misfeasance tort and the Means Tort, respectively, but which is independent of, less complicated than and easier to prove than those torts; and 114 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

(b) It gives separate contractual force to many of the concurrent statutory and common law principles and duties to which the Govern- ment was subject throughout the currency of the plaintiff’s Licences including that their public trust required that they not act arbitrarily toward or discriminate against the plaintiff. 139 In the case at Bar, the Government breached its Contractual Honesty Duty by failing to act “honestly” concerning matters which related to the plaintiff’s licences during the performance of them which destroyed the value of its business and business potential in the process. Particulars of such wrongful conduct during the currency of those Licences included: (a) Making misrepresentations to the plaintiff; (b) Failing to disclose the $5,000 Schedule to the plaintiff and never correcting its misrepresentations concerning it in the face of Mr. Smith’s pre-existing admonition to Mr. Farrell that it was necessary to be “upfront with Mr. Beach” as well as the plaintiff’s further inquiries during the currency of the Licences; (c) Actively discriminating in favour of WCW and against the plaintiff by granting unlawful, preferential concessions and advantages to WCW to assist it in competing against the plaintiff, including repeatedly acting contrary to the Water Act, the Land Act and the Financial Administration Act for those purposes (e.g., granting rights to WCW to divert and use water without requiring it ever to hold a water licence; permitting WCW to do so without paying mandatory fees and water rentals; unlawfully granting WCW 25 year rights, and providing it with exclusivity of source); (d) Actively supporting WCW and discriminating against the plaintiff in relation to Santa Barbara and Goleta; (e) Failing to provide the level playing field on which to treat all parties equitably with respect to access to water resources (i.e. to maintain an even hand). (f) In 1990, unlawfully terminating the plaintiff’s Foreshore Licence; and (g) In 1991, unlawfully terminating the plaintiff’s Water Licences, on the basis that it was justified in doing so by its previous termina- tion of the plaintiff’s Foreshore Licence, which had of course been unlawful itself and, therefore, could not have been a lawful basis for terminating the Water Licences. Rain Coast Water Corp. v. British Columbia Leask J. 115

B. The Defendants’ Position 140 The defendants’ submissions with respect to the Bhasin decision began by raising a procedural point — the plaintiff did not plead or prove a contractual breach. This proposition was refined by suggesting that, to succeed, the plaintiff would have to: (a) plead the contract it relies on; (b) plead the term or terms of the contract (express or implied) that the plaintiff alleges embody the overarching organizing principle of good faith; (c) prove the existence of any implied terms that the plaintiff says carry the organizing principle of good faith into the contract between the parties; and (d) prove a breach of the term or terms alleged. 141 Counsel for the defendants submits that the plaintiff has done none of these, and neither the pleadings nor the evidence support a finding that any of these requirements are met. Furthermore, had the plaintiff framed its case as a claim for breach of contract, the trial would have proceeded in a significantly different manner, against only the government (the contracting party), and would have had an entirely different focus (a claim based on breach of a specific or an implied term in a contract, as was the case in Bhasin). The witnesses called to defend the claim, and the cross- examination of witnesses would have been significantly different. Clearly, there would be substantial prejudice to the defendants if the plaintiff was permitted to amend its case to pile on additional theories of liability after the end of the trial. 142 The defendants then submitted that the Bhasin decision would not have assisted the plaintiff even if the plaintiff had plead and prosecuted the case as one for breach of contract. For this part of their argument, the defendants rely upon Moulton Contracting Ltd. v. British Columbia, 2015 BCCA 89 (B.C. C.A.). In that case, Levine, J.A. emphasized several points from Cromwell, J.’s Reasons in Bhasin. One was the proposition that the organizing principle of good faith manifests itself “through existing doctrine”; it does not create new ones. She also mentioned that the common law duty of honesty in contractual performances does not “impose a duty of loyalty or disclosure on parties to the contract. In that context, she quoted (at para. 73) this passage from Bhasin: This means that the parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of 116 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

the contract. This does not impose a duty of loyalty or of disclosure or require a party to forego advantages flowing from the contract; it is a simple requirement not to lie of mislead the other party about one’s contractual performance. 143 The defendants also continue their insistence that the government has no obligation to treat all parties seeking to enter into contracts with them equally. They submit that Bhasin makes no charge in this standard. In their submission they concede that regulatory schemes such as water licences under the Water Act and licences of occupation under the Land Act must be administered fairly but this is distinguishable from a requirement to treat all citizens equally. In support of this position, they cite Rustad Brothers & Co. v. British Columbia (Minister of Forests) (1988), 23 B.C.L.R. (2d) 188 (B.C. S.C.).

C. Discussion 144 I am in partial agreement with some of the defendants’ submissions. The plaintiff’s submissions do not appear to recognize the limitations on the Bhasin formulation inherent in Cromwell, J’s own words. In particular, the plaintiff does not appear to accept that Bhasin does not create a duty to disclose nor does it deal with pre-contract discussions. Both of these points mean that Mr. Farrell’s non-disclosure of the $5,000 export tariff would not be caught by Bhasin reasoning. I do not find in Bhasin some new doctrine preventing arbitrary action or discrimination by government bodies. 145 On the other hand, the defendants’ reliance on Moulton Contracting Ltd. ignored Levine, J.A.’s own words: Moulton’s submission does not deal with Cromwell J.’s discussion of the common law duty of honesty in contractual performances that flows from the organizing principle of good faith... No issues of honest contractual performance, as discussed in Bhasin arise in this appeal. (paras. 73 and 76) 146 As to the issue of government discrimination, I agree with the defendants that Bhasin does not deal with this issue. However, I agree with the plaintiff that Rustad has, for practical purposes, been overruled by Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 (S.C.C.); R. v. Sharma, [1993] 1 S.C.R. 650 (S.C.C.). See also Grace v. British Columbia (Lieutenant Governor in Council), 2000 BCSC 923 (B.C. S.C.) at para. 49. Rain Coast Water Corp. v. British Columbia Leask J. 117

147 Turning to the issues of pleading and procedure, the plaintiff says it is prepared to rely solely on the evidence adduced at trial; if required, only very limited amendments to the pleadings would be needed. The defendant argues for more extensive modification of the pleadings; suggests that the trial would have proceeded quite differently with only one defendant (the government), different witnesses and different cross-examination. The defendants allege that permitting the plaintiff to add additional theories of liability after the end of the trial would cause substantial prejudice to the defendants. 148 As to the trial being conducted in a substantially different manner, I am not convinced. The defendants appear to be hypothesizing a “contract only” trial while I believe the plaintiff is suggesting a “torts plus contract” trial. Considering that the plaintiff’s evidence could support both tort theory and contract theory arguments, I do not consider the possible amendment of pleadings to be a significant problem. I am, however, concerned by the submission that permitting the plaintiff to make Bhasin arguments would cause substantial prejudice to the defendants. This factor, combined with the plaintiff’s submissions that applying Bhasin would provide the plaintiff with “an additional, highly effective and stand-alone remedy against the government, in contract, covering important ground which had previously been covered substantially by the misfeasance tort and the means tort” and gives “separate contractual force to many of the concurrent statutory and common law principles and duties to which the Government was subject” persuade me that it is not appropriate to permit the plaintiff to put forward Bhasin arguments at this stage of this proceeding. The plaintiff does not claim that Bhasin arguments are necessary for it to succeed.

5. Misfeasance in Public Office A. The Law 149 Roncarelli c. Duplessis, [1959] S.C.R. 121 (S.C.C.), is an early case dealing with targeted malice in the tort of misfeasance in public office in Canada. The Supreme Court of Canada held that the plaintiff was entitled to damages for the malicious conduct of the then Premier of Quebec en- forcing the cancellation of the plaintiff’s liquor licence for political reasons unrelated to the statutory licensing scheme. 150 The House of Lords decision in Three Rivers District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220 (U.K. H.L.), is the seminal 118 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

decision on the tort of misfeasance in public office, where Lord Steyn stated the rationale for this tort: In a legal system based on the rule of law, executive or administra- tive power may be exercised only for the public good and not for ulterior and improper purposes. 151 The Supreme Court of Canada decision in Odhavji Estate v. Wood- house, [2003] 3 S.C.R. 263 (S.C.C.) which adopted the rationale of Three Rivers, is now the leading Canadian decision on the tort of misfeasance in public office. 152 In that case, the plaintiffs were the family members of an individual who was shot by Toronto police officers. The pleadings included an allegation that the officers had willfully refused to comply with a statutory requirement to co-operate with an internal investigation into the shoot- ing, and this refusal constituted misfeasance in public office. The case went to the Supreme Court of Canada on a pleadings issue, thus it was unnecessary for the Supreme Court to consider in detail the mental ele- ment of the tort. The Supreme Court did, however, accept that there were two alternative branches to the tort, which it labelled “Category A” and “Category B” (at para. 22): ... In Three Rivers, the House of Lords held that the tort of misfeasance in public office can arise in one of two ways, what I shall call Category A and Category B. Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff. This understanding of the tort has been en- dorsed by a number of Canadian courts.... 153 The distinguishing features between the two categories of the tort were described by lacobucci J. in Odhavji at para. 23 in this way: What distinguishes one form of misfeasance in a public office from the other is the manner in which the plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredi- ents of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff. Rain Coast Water Corp. v. British Columbia Leask J. 119

154 In the Ontario Court of Appeal decision in O’Dwyer v. Ontario Racing Commission, 2008 ONCA 446 (Ont. C.A.), the Court expounded on Odhavji and held, at paras. 41 and 42 that: In respect of the nature of the misconduct, the focus of the inquiry is on whether the alleged misconduct is deliberate and unlawful. As noted in Odhavji at para. 24, “[t]his may arise from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted or for an improper purpose.” Importantly, the defendant must have been aware that his conduct was unlawful. The state of mind required to establish liability depends on which category the tort falls into. Category A involves “targeted malice”, whereas the requirement of intentional misconduct for Category B may be satisfied by “reckless indifference as to the legality of the act or its probable consequences.” As established in Odhavji at para. 38, “[a]t the very least...the defendant must have been subjectively reckless or wilfully blind as to the possibility that harm was a likely consequence of the alleged misconduct”. 155 The Three Rivers formulation has generally been accepted by the lower courts in Canada. Under the Three Rivers test, deliberate misconduct under Category B liability is established by proof of: An intentional illegal act, which involves: a. an intentional use of statutory authority for an improper purpose; or b. actual knowledge that an act (or omission) is beyond statutory authority; or c. reckless indifference or willful blindness as to the lack of statutory authority for the act; Intent to harm an individual or class of individuals which is satisfied by: a. an actual intent to harm; or b. actual knowledge that harm will result; or c. reckless indifference or willful blindness to the harm that can be foreseen to result. 156 The Alberta Queens Bench in Alberta (Minister of Public Works, Supply & Services) v. Nilsson, 1999 ABQB 440 (Alta. Q.B.), provides a useful example of this standard in play. In this case, cabinet passed a regulation pursuant to a provincial environmental statute that established a development freeze that affected the plaintiff’s property. The freeze was purportedly implemented to create a green belt, but in fact the gov- 120 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

ernment’s motive was to preserve land for road construction. The regulation was eventually struck down on the grounds that it was ultra vires the statute. 157 The trial Court in Nilsson drew the inference that cabinet had committed an illegal act in enacting the regulation knowing (or at least being reckless to) the fact that the regulation was not authorized by statute. The Court accepted that liability under the tort could be established by show- ing a reckless excess of power, and this standard was met where: 107 ... zealous servants over-step their authority for what they believe is the best interests of the public without due regard for individuals consequently harmed, or when executive decisions are made which bend the rule and injure a few to avoid politically undesirable consequences.

B. Was the Province of B.C. the Tortfeasor? 1. Plaintiff’s Position 158 The plaintiff’s position, relying in part on Jones v. Swansea City Council, [1990] 1 W.L.R. 1453 (U.K. H.L.), is that the Province, as a collective body, is the responsible tortfeasor in the tort of misfeasance in public office. The plaintiff bases this submission on O’Dwyer v. Ontario Racing Commission, 2008 ONCA 446 (Ont. C.A.), for the proposition that a collective public body can be considered a public officer for the purpose of misfeasance in public office. The Ontario Court of Appeal held at para. 43: The requirement that the tort be committed by a “public officer” was addressed in the seminal case of Three Rivers D.C. v. Bank of England (No. 3), [2000] 2 W.L.R. 1220, in which the House of Lords commented that public office is to be defined in “a relatively wide sense”. The decision in Jones v. Swansea City Council, [1990] 1 W.L.R. 1453 (C.A.), was cited for the purpose of demonstrating that a collective public body such as a council can be liable for the tort. The decision in Three Rivers was largely adopted into Canadian law through the Supreme Court decision in Odhavji Estate v. Woodhouse.

2. Defendant’s Position 159 The defendants argue that the attempt to make the Province of British Columbia the tortfeasor is bound to fail because the concept of collective misfeasance alleged by the plaintiff is poorly defined and does not fit the facts of this case. Rain Coast Water Corp. v. British Columbia Leask J. 121

3. Discussion 160 My initial view was that it would be difficult for the requisite mental elements of either Category A or B to be established for the provincial government as a whole. The B.C. Court of Appeal’s reasoning in Powder Mountain Resorts Ltd. v. British Columbia, 2001 BCCA 619 (B.C. C.A.) states at para. 9: ...it is important to consider the actions and motivations of each of the individual actors separately. One should not attribute, for example, the detailed knowledge of persons at one level of administration to persons at another level who have only general knowledge of the subject and are largely dependent on the advice of others. It is also important to keep in mind the practical context in which the decision- makers were operating. Certainly at the level of Cabinet Minister or Premier, it is likely the matter of preliminary approval of PMR’s proposal was only one of many decisions required to be made by the government of the day, some of greater and some of lesser importance. 161 However, upon further reflection I have come to the conclusion that the Provincial Government as a whole may properly be considered the potential tortfeasor with respect to the contrast between the Govern- ment’s dealings with the plaintiff and with WCW. I will first deal with two matters where individual actors can be clearly identified: (1) the failure to disclose the $5,000 water tariff; and (2) the cancellation of the plaintiff’s foreshore lease. With respect to those issues, the Government can be found liable on a respondent superior basis. Then I will discuss the WCW issues.

C. The Failure to Disclose the $5,000 Water Tariff 162 Between January 1983 and May 1985 Mr. Beach, representing the plaintiff had numerous meetings with the Comptroller of Water Rights, Mr. Brady, his Deputy, Mr. Farrell, and other members of the Comptrol- ler’s staff. He exchanged numerous letters with these same individuals. On March 13, 1984 Tom Smith, Head of Operations, Water Branch wrote a memorandum to the Deputy Comptroller, J. W. Farrell. The relevant portions were: the need to know the fee structure for export of water is becoming critical, particularly in connection with the water application from Coast Mountain Aquasource Ltd. (the plaintiff). ... 122 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

It is now important that we are up front with Mr. Beach and advise him not only of the physcial requirements but also the schedule of fees regarding export of water. 163 On the court copy of this memorandum there is a handwritten reply to Mr. Smith: At meeting on April 2, 1984 Mr. Brady advised he has discussed with DM J.E.F. April 2, 1984 164 I find as a fact that J.E.F. is Mr. Farrell and that he is reporting on a meeting between the Comptroller of Water Rights (Mr. Brady) and the Deputy Minister. 165 Mr. Farrell was also the official who signed the Schedule of Water Rates on December 7, 1984 including the item EXPORT OF WATER (Presently same as “Mineral Trading (a) Pur- pose. Is subject to review and may be segregated into a separate category.) The note at the end of the schedule said: For any use listed in this Schedule the application fee and annual rental shall not exceed $5,000 each. 166 Neither Mr. Farrell, nor Mr. Brady, the Comptroller, nor any other member of the Comptroller’s staff ever informed the plaintiff of this tariff. Mr. Beach testified at trial that he first learned of this tariff in 1998, two years after this lawsuit was commenced, as a result of a Pri- vacy Act request made to the B.C. Government. Counsel for the defendants called no evidence on this issue (and made no submissions on the subject). 167 The plaintiff’s application for a water licence and the “interest in land” that was required continued to be held in abeyance pending Cabi- net decision on water export policy. When that decision was finally made, the plaintiff received a foreshore licence and then two water licences. By then O.I.C. 630 had been promulgated and, instead of having to pay a $5,000 application fee and a $5,000 annual rental, the plaintiff had to deal with a $13,839 application fee and a $69,195 annual rental fee. These fees were a significant detriment to the establishment of the plaintiff’s business. 168 In the absence of any evidence or explanation from Mr. Farrell or any other defence witness, I am satisfied that the plaintiff has established a Category A misfeasance in public office by J.W. Farrell, the Deputy Comptroller of Water Rights. If I have fallen into error in making this Rain Coast Water Corp. v. British Columbia Leask J. 123

finding, I am also satisfied that the facts in this case would also justify a finding that J.W. Farrell committed misfeasance in public office by means of Category B. In either case, I am also prepared to find the B.C. Government liable for this tort on the basis of respondent superior.

D. Unlawful Cancellation of the Plaintiff’s Foreshore Licence 1. Plaintiff’s Position 169 The plaintiff’s position is that Mr. Roberts acted with reckless indifference or willful blindness to the potential damage to the plaintiff in dealing with the unlawful cancellation of the Foreshore licence. Mr. Rob- erts at his examination for discovery on August 17, 2004, was asked: Q And you understood that Mr. Beach had been talking about revenues in the possible millions of dollars, isn’t that correct? A He probably had. Q So you were aware that the damage to the Plaintiff could have been in the range of multi millions of dollars? A As I have said, I’m also aware that the damage could have been — or the Plaintiff could have avoided the damage very simply by paying up on time and actually managing some more effective constructive use of the site.

2. Defendant’s Position 170 The defendant’s position is that, in the present case, although the court has ruled that the plaintiff’s Foreshore License was cancelled unlawfully, there is no indication that Mr. Roberts acted in bad faith or in any way deliberately engaged in conduct that he knew to be inconsistent with the obligations of the office. The law is clear that an erroneous decision is not sufficient to support a claim of bad faith and, without more, cannot found a claim of misfeasance in public office.

3. Discussion 171 Prior to the trial of this case, I dealt with the cancellation of the plaintiff’s Foreshore Licence at a summary trial - Rain Coast Water Corp. v. British Columbia, 2010 BCSC 114 (B.C. S.C.). The Lands Branch purported to cancel the plaintiff’s Foreshore Licence on November 28, 1990. My conclusion at para. 55 was: The defendant’s failure to comply with the notice requirements under the terms of the Licence, the Land Act and in accordance with its 124 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

own Crown policy on notice, renders their notice inadequate and the cancellation of the Licence was unlawful as a result. 172 In my Reasons for Judgment I dealt with events up to, and including, the November 19, 1990 letter from the Lands Branch informing the plaintiff that the Foreshore Licence had been cancelled. 173 Following receipt of that letter, on 8 Dec 1990 Mr. Beach attended a meeting at the Crown Lands office in Burnaby, B.C., with his associates, Alan N. McLeod and Donald J. MacNaughton, and the plaintiff’s legal counsel, Michael P.S. Spearing. At that meeting, Mr. Beach tendered $3500 to the defendant Roberts in order to have the Plaintiff’s Aquatic Licence 232354 reinstated. 174 On 31 Dec 1990 the defendant Roberts wrote to the plaintiff stating as follows: “An additional item that we reviewed, pursuant to comments made by Mr. Spearing during the December 8th meeting, was the appro- priateness of the procedure utilized in cancelling the Licence in question on November 29, 1990. Our review has revealed that we followed standard Ministry procedure and therefore, we are not able to agree with the position taken by Mr. Spearing on this matter.” 175 This Court has found that standard Ministry procedure was not followed. 176 As to Mr. Robert’s actions in cancelling the Foreshore Licence it would appear that the plaintiff has made out a case for Category B misfeasance in office. Whatever his state of knowledge was when he wrote on Nov 28, 1990 purporting to cancel the plaintiff’s Foreshore Licence, he subsequently met with representatives of the plaintiff and plaintiff’s counsel, Michael Spearing. Mr. Spearing pointed out to Mr. Roberts’s defects in the procedure followed by the Ministry. He subsequently reaf- firmed in his December 31st letter the erroneous position that standard Ministry procedure has been followed. 177 I am satisfied the behavior described above amounted to “reckless indifference or willful blindness to the lack of statutory authority for the Act.” Mr. Robert’s answers on Examination for Discovery would seem to provide satisfactory evidence of either a. actual knowledge that harm will result or Rain Coast Water Corp. v. British Columbia Leask J. 125

b. reckless indifference or willful blindness to the harm that can be foreseen to result. 178 In either event, that would satisfy the requirement for intent to harm the plaintiff. That leaves the question of proving that the tortious conduct was the legal cause of injury to the plaintiff and that the injury is com- pensable in tort. 179 According to a letter written to the plaintiff by Dave Parker, Minister of Crown Lands, on October 23, 1991: ... It is my understanding, that subsequent to my letter of July 5, 1991 you did meet with staff from the Lower Mainland Regional Office of my Ministry in Burnaby. At that time, the outstanding rentals were paid in full on the basis of which the Ministry agreed to entertain a re-application from yourself over the surface area you required at the base of Freil Falls. At that time it was clearly stated, that the issuance of any tenure would be dependent on your having water licences from the Ministry of Environment in good standing. I am advised that on September 23, 1991, the two water licences you held ... were cancelled .... Accordingly, the Regional Office will be disallowing your application for surface tenure. 180 This, of course, was a straightforward example of Catch 22 type reasoning. The plaintiff’s Foreshore Licence was wrongfully cancelled. Then the plaintiff was given the opportunity to restore his Foreshore Li- cence by paying his rental arrears. When he tendered the funds, he did have the water licences. Two months later the water licences were cancelled on the basis that he was not in possession of the necessary interest in land. Then the Minister of Crown Lands writes to say that he is not able to have his land Tenure restored. Needless to say, the foregoing advice from the defendant Minister Parker was in contradiction of the advice the plaintiff had previously received from the from both members of the Lands Branch and the staff of the Comptroller of Water Rights, namely that it could not acquire or have a water licence in good standing, unless it had a land tenure. 181 This Kafkaesque procedure resulted in the plaintiff being deprived of both its Foreshore Licence and its water license. 182 The cancellation of the plaintiff’s Foreshore Licence and water licences and the refusal to renew them was certainly at least a partial cause of legal injury to the plaintiff. 126 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

183 On the basis of the foregoing analysis I am satisfied that Richard Roberts committed the tort of misfeasance in office as described in Cate- gory B. 184 I am also satisfied that the B.C. Government is liable for this tort on the basis of respondent superior. 185 I believe that any damage flowing from the cancellation of the plaintiff’s water licences are a result of the unlawful cancellation of the Fore- shore Licence. If I have fallen into error in reaching this conclusion, I also find as a fact that the cancellation of the water licences is a Category B misfeasance of office and that Minister Parker’s letter of October 23, 1991 constitutes a further Category B misfeasance of office.

E. Unlawfully Favoring WCW 186 The relationship between the Province and WCW falls naturally into three phases: (1) commencement of the relationship; (2) the three WCW Agreements; and (3) the conduct of the Province’s representatives during discussions with California water districts.

1. Commencement of the Relationship 187 Certain facts are undisputed; others are hotly contested. 188 Mr. Annett, one of the principals of WCW, testified that he saw an advertisement in the Vancouver Sun notifying the public that there was an opportunity to obtain bulk water from Link Lake at Ocean Falls. Neither Mr. Annett, nor any other defendant, provided documentary evidence of any such advertisement. Mr. Annett and the other defendants also did not provide any documentary evidence of any plan by the Prov- ince, OFC, Mr. Wakabayashi or Trillium Projects to widely publicize the availability of water for export from Link Lake at Ocean Falls in order to maximize the Province’s revenues from this source. 189 Based on the evidence of the plaintiff and the credibility of Mr. An- nett, coupled with the failure of any other defendant to testify or call other witnesses or produce any documents supporting this assertion, I find that there was no such widely publicized effort made by the Prov- ince or agents acting on its behalf. 190 The plaintiff’s principal, Mr. Beach, had spoken to and written to Mr. Williston, president of OFC, in 1984, asking to be kept informed of any possible developments. Mr. Williston made a reply in July 1984, which, in his own words, “was not much help.” During 1985, no further information was given to the plaintiff. Rain Coast Water Corp. v. British Columbia Leask J. 127

191 Mr. Arnett and his lawyer met with the Province’s Minister McClel- land in August 1985. 192 On September 6, 1985, Trillium Projects wrote to WCW, Pacific Rim Water Resources (“Pacific Rim”) and one other company giving these companies until September 24, 1985 to respond with proposals to make bulk water exports from Link Lake. 193 From further evidence presented to the Court, it appears that Pacific Rim had been negotiating with OFC through the summer of 1985. The agreement that was eventually signed between WCW and OFC, dated March 21, 1986, included a reservation of some rights to Pacific Rim. 194 In early December 1985, the Province’s Ministry of Finance was considering a request from the Province’s Ministry of Industry and Small Development, which was the Ministry responsible for OFC, “to offer the successful bidder from two competing proposals the exclusive right to export water by ship from Ocean Falls.” By December 11, 1985, Mr. Williston confirmed that OFC would enter into an agreement with WCW. 195 Tellingly, Minister McClelland wrote to Pacific Rim on February 12, 1986 advising: “The final decision on the agreement will ultimately be made by the Cabinet and myself...” 196 On the evidence, I am satisfied that there was no proper public process providing for expressions of interest or bidding for the right to export water from Ocean Falls. 197 Despite the previous communications between the plaintiff’s principal and Mr. Williston, the plaintiff was given no opportunity to compete with WCW. Furthermore, despite the formal appearance of an agreement between OFC and WCW, the true contracting party with WCW was the Province. This conclusion is strengthened by the fact that the Ocean Falls Corporation Repeal Act, S.B.C. 1983, c. 7 was proclaimed on March 31, 1986, 10 days after the signing of the OFC/WCW Agreement. By that Act, the OFC was dissolved and its rights, property, assets, obligations and liabilities were assumed by the Province.

2. The WCW Agreements 198 There were three WCW Agreements: a. an agreement dated March 21, 1986 between OFC and WCW; b. an agreement dated February 11, 1987 between WCW and the Province represented by the Minister of Forests and Lands; and 128 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

c. an agreement dated September 25, 1989 between WCW and the Province represented by the Minister Responsible for Crown Lands. (collectively referred to as the “WCW Agreements”). 199 The plaintiff argues that the WCW Agreements were unlawful as being contrary to various provisions of the 1979 Water Act. 200 The Province was aware of at least some of these issues. In February 1991, the Deputy Comptroller of Water Rights, Mr. Farrell, in a briefing note to the Province’s Minister of Environment stated that for the water licences held by the Ministry of Crown Lands, the Minister does not pay water licence rental; WCW does not pay water licence rentals because it does not hold a water licence; other licencees and applicants have complained that WCW is given an unfair advantage. 201 The plaintiff says that the WCW Agreements contravened s. 41 (1) of the 1979 Water Act because the WCW Agreements purported to authorize WCW to commit the following offences: (h) to engage in the business of operating works to carry water for others without holding a licence of other authority in that behalf under this or a former Act, (j) to construct, maintain, operate or use works without authority; (I) to divert water from a stream without authority; and (o) to use water when it was not lawfully entitled to do so. 202 The plaintiff says that the WCW Agreements also contravened s. 45 of the 1979 Water Act and Regulations 204/88. More particularly, the Province did not require WCW to pay the following fees and rates mandated by s. 45 of the 1979 Water Act and Regulations 204/99 on 42,635.3 acre-foot per year: a. application fees of $86,870.60 pursuant to s. 3(h)(1) of the Regu- lations based on $2,000 for 200 acre-feet or less plus $20 for each additional 10 acre-feet or fraction thereof; and b. annual water rentals of $383,717.70 pursuant to s. 3(h)(2) of the Regulation to maintain the right to export water, based on $900 for 100 acre-feet or less plus $90 for each additional 10 acre-feet or fraction thereof allowed. 203 Similarly, the plaintiff says the Province did not require WCW to pay the usage fees of $9.00 per acre-foot mandated by s. 45 of the 1979 Water Act and O.I.C. No. 889. Rain Coast Water Corp. v. British Columbia Leask J. 129

204 The plaintiff also argues that the exclusivity provisions of all of the WCW Agreements were unlawful because no such provision was authorized by the 1979 Water Act. The plaintiff relies, in part, on a letter from Premier Vander Zalm, dated May 22, 1990 which said: After review of the relevant factors, it is Cabinet’s decision that continued exclusivity should not be granted. Western Canada Water has enjoyed substantial benefits associated with exclusivity of source over the past four years and has had the opportunity to develop the industry in British Columbia and throughout the Pacific Rim. 205 The plaintiff complained that the WCW Agreements contravened its statutory right to notice (s. 8 of the 1979 Water Act) and to object to the Comptroller (s. 9 of the 1979 Water Act).” 206 The defendant’s answer to these objections is that s. 2 of the 1979 Water Act vests all property in the right to the use and flow of all water at any time in a stream in British Columbia for all purposes in the Crown in Right of the Province. The defendants further say OFC was by its act of incorporation an agent for the Province and, therefore, had the right to the use and flow of all the water at any time in any stream in British Columbia, including Link Lake. 207 The defendants also argue that the Conditional Water Licence issued to OFC implicitly authorized OFC, and later the Province, to sell water to a third party. They also argue that the Province (as represented by the Ministry of Forests and Lands) obtained an exemption from the provisions of the Water Utility Act, 1979 and the Utilities Commission Act, 1980 in March 1987 that provided further explicit authority to permit the Province to sell water from Link Lake to WCW. The defendants submit that, in turn, WCW had full lawful authority to use and divert the water it purchased from the Province by virtue of the contractual relationships it had entered into with OFC and the Province. 208 I am persuaded by the plaintiff’s arguments and reject the defendant’s submissions on this point. 209 I do not accept the submission that OFC as an “agent of the Province” had the Province’s right to the use and flow of all water in any stream in British Columbia. Furthermore, the authority granted to OFC and later the Minister to export water (with no mention whatsoever of WCW) was not sufficient compliance with the Water Act. I disagree with the proposition that the Conditional Water Licence implicitly authorized OFC, and later the Province to sell water for export to third parties. The entire 130 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

scheme was an improper plan to favour WCW and, therefore injure its competitors, including the plaintiff. 210 None of the WCW Agreements complied with the 1979 Water Act regime to which the plaintiff and other competitors were required to comply. WCW was not required to have an ownership in land; it was not required to apply for a water licence or publish its application so members of the public (including the plaintiff) could register objections. It was not required to pay the fees for reserving water in advance. It was initially given a 15-year term that was later extended to 25-years; it was given exclusive rights to the Link Lake water.

3. Conduct of the Province’s Representatives in Discussions with California Water Districts 211 On May 17, 1990, John Reynolds, the Province’s Minister of Envi- ronment sent ten letters to various officials of the City of Santa Barbara on behalf of the Province urging favorable consideration of WCW and mentioning WCW’s 25 years of access to water from Link Lake. The letters were drafted for the Minister’s signature by Mrs. Annett, the Pres- ident of WCW. 212 On March 5, 1991, the Goleta Water District in California issued a Request for Proposals for delivery of water to it. 213 On March 8, 1991, Premier Vander Zalm wrote to the Goleta Water District indicating that the Province had an agreement with WCW, in effect for 25 years, allowing WCW to ship up to 43,000 acre-feet of water from Ocean Falls and urging the Goleta Water District to give favorable consideration to WCW. 214 More importantly, when the Board of the Goleta Water District decided to reject its committee’s recommendation to deal with WCW and instead chose to deal with Sun Belt, Mrs. Annett wrote to Premier Van- der Zalm and two other members of the Provincial Cabinet pointing out that Sun Belt, an American company, was relying on the plaintiff and another B.C. company, Snowcap, for its source of tankered B.C. water. She sought the help of these Provincial Ministers to assist WCW and hinder the plans of Sun Belt, the plaintiff and Snowcap. The same day her communications were received the Cabinet decided to impose a moratorium on further export licences for B.C. water. The moratorium was announced on March 18, 1991 effective March 20, 1991. In the absence of defence evidence to provide an innocent explanation of this timing, I infer that Cabinet, urged by the Premier and supported by Ministers Rain Coast Water Corp. v. British Columbia Leask J. 131

Veitch and Serwa timed the initial imposition of the moratorium to assist WCW and hinder the efforts of Sun Belt, the plaintiff, and Snowcap to deal with the Goleta Water District. Based on the evidence of Ms. Kathe- rine Crawford, which I accept, this scheme was successful in defeating the plans of Sun Belt, the plaintiff and Snowcap but unsuccessful in assisting WCW.

4. Conclusion 215 I am satisfied that the plaintiff has made out a case of misfeasance in office, Category B, involving reckless indifference or willful blindness as to the lack of statutory authority as well as reckless indifference or willful blindness to the harm that can be foreseen to result on all three issues raised by the plaintiff with respect to the Province’s dealings with WCW contrasted with the dealings with the plaintiff: 1. The initial selection of WCW was a clear example of giving favorable treatment to one competitor at the expense of others, including the plaintiff, and against the public interest; 2. The WCW agreements, by completely ignoring the Water Act requirements, giving WCW exclusivity and not requiring payment of the rental fees required by the Water Act in themselves constituted a Category B misfeasance in public office. 3. The contact between Mrs. Annett and the Premier with respect to the Goleta Water District and, particularly, the timing of the O.I.C. creating the initial moratorium on water exports again could possible make out a Category A misfeasance but certainly fulfilled the conditions for a Category B misfeasance. 216 In the unusual circumstances detailed above. I am prepared to find the Provincial Government to be guilty of Category B misfeasance in public office as well as the then Premier, Bill Vander Zalm.

Constitutional Questions 217 I had the benefit of hearing first class submissions from separately retained counsel for both sides dealing with the question of whether certain orders-in-council and the Water Protection Act were ultra vires the provincial government. In the light of my findings of fact in these reasons, I do not consider it necessary to resolve these interesting legal questions. I remain grateful to counsel for their very instructive submissions. 132 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

Damages 218 I did not find either the plaintiff’s or the defendants’ evidence or submissions on damages to be very helpful. In my view this was not the fault of counsel for either party. The facts of this case are complex and the range of possible outcomes very wide. 219 In my view it should be open to counsel for both parties to put before the court evidence and submissions based on the findings made in these Reasons for Judgment to assist the Court in arriving at a proper quantum of damages. 220 I ask counsel to arrange a mutually convenient time to hold a Judicial Management Conference to plan this aspect of the case. Of course, if the findings of fact enable the parties to resolve the damages issue without further assistance from the Court, that would be an acceptable result.

Conclusion 221 Dealing with the issues: 1. The Limitation Act is not available to the defendants as a defence. 2. The plaintiff has failed to establish that any defendant committed the tort of negligent misrepresentation. 3. The plaintiff has established that Bill Vander Zalm and the Prov- ince of British Columbia have committed the unlawful means tort. 4. I decided that it was inappropriate to permit the plaintiff to make arguments based on Bhasin v. Hrynew at this stage of this case. 5. (a) The plaintiff has established that Richard Roberts has committed the tort of misfeasance in public office by unlawful cancellation of the plaintiff’s Foreshore Licence. (b) I find that the Deputy Comptroller of Water Rights, J.W. Far- rell, committed the tort of misfeasance in public office by failing to disclose the $5,000 water tariff to the plaintiff. Mr. Farrell was not a defendant in this action but I found the Province of B.C. liable for Mr. Farrell’s actions on the basis of respondent superior. I also found that Bill Vander Zalm committed the tort of misfeasance in public office by causing the O.I.C. creating a moratorium on the issue of export licences for water to be issued at a time that would assist WCW and harm the plaintiff as well as Sun Belt and Snowcap. I found the Province of B.C. liable for a Category B misfeasance in public office for its dealings with Western Canada Water. Rain Coast Water Corp. v. British Columbia Leask J. 133

6. I found it unnecessary to decide whether the Order in Council or statute establishing a moratorium banning the export of water in bulk was ultra vires the Province of British Columbia. 7. I have not yet decided what damages the plaintiff is entitled to recover but have given counsel for both the plaintiff and the defendants the opportunity to call further evidence and make further submissions on that subject. Order accordingly. 134 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

[Indexed as: C. (H.) c. C. (V.)] H... C... (Demandeur) c. V... Cl... (Défendeur) Cour supérieure du Québec Docket: C.S. Joliette 705-17-003763-107 2016 QCCS 858 Dulude, J.C.S. Judgment: 24 février 2016 Délits civils –––– Intrusion — Intrusion relative a` une personne — Voies de fait et batterie — Agression sexuelle –––– Victime a et´´ e agressée sexuellement par son oncle entre les agesˆ de 9 et 17 ans — Traumatisée et paralysée par la peur, la victime a décidé de ne pas parler des agressions — Victime n’a dénoncé les abus a` la police qu’à l’âge de 33 ans — Oncle a et´´ e arrêté et inculpé d’agression sexuelle — Au terme du procès criminel, l’oncle a et´´ e acquitté— Victime a déposé une action en dommages a` l’encontre de l’oncle, visant a` obtenir 200 000 $ en dommages-intérêts généraux et 35 000 $ en dommages- intérêts exemplaires — Action accueillie — Preuve révélait que l’oncle recon- naissait avoir et´´ e seul avec la victime a` plusieurs occasions — Témoin expert etait´ d’avis que la description factuelle de la victime etait´ ce a` quoi on devait s’attendre d’une victime ayant et´´ e agressée sexuellement alors qu’elle etait´ enfant — Victime semblait inconfortable et honteuse en tentant de se souvenir des faits de l’affaire — En comparaison, le témoignage de l’oncle etait´ excessive- ment détaillé et l’oncle lui-même semblait détaché et indifférent — Victime a réussi a` faire la démonstration, de manière prépondérante, qu’elle avait et´´ e agressée sexuellement et que son oncle a commis une faute — Preuve révélait que le préjudice subi par la victime alors qu’elle etait´ enfant l’a blessée de plusieurs fa¸cons durant sa vie entière — Il fallait prendre note que l’oncle etait´ un membre de la famille, ce qui ne faisait qu’alourdir le préjudice que la victime avait subi — Par conséquent, l’oncle a et´´ e condamné a` payer 150 000 $ en dommages-intérêts a` la victime. Procédure civile –––– Prescription — Actions en responsabilité délictuelle — Actions particulières — Atteinte a` l’intégrité physique d’une personne — Agression sexuelle ou maltraitance –––– Victime a et´´ e agressée sexuellement par son oncle entre les agesˆ de 9 et 17 ans — Traumatisée et paralysée par la peur, la victime a décidé de ne pas parler des agressions — Victime n’a dénoncé les abus a` la police qu’à l’âge de 33 ans — Oncle a et´´ e arrêté et inculpé d’agression sexuelle — Au terme du procès criminel, l’oncle a et´´ e acquitté— Victime a déposé une action en dommages a` l’encontre de l’oncle, visant a` obtenir 200 000 $ en dommages-intérêts généraux et 35 000 $ en dommages- C. (H.) c. C. (V.) 135

intérêts exemplaires — Action accueillie — Cour d’appel a statué qu’il arrive souvent que les victimes d’agression sexuelle soient dans l’impossibilité d’agir pendant un certain temps — Ainsi, le délai de prescription pour les actions en dommages-intérêts dans de tels cas ne commence a` courir qu’à partir du moment où la victime etablit´ un lien entre le préjudice subi et l’agression sexuelle — Témoin expert a expliqué que la victime savait qu’elle avait et´´ e agressée, mais qu’elle gardait le silence en raison de la peur que lui inspirait son oncle et que la victime ne s’est rendu compte a` quel point elle avait et´´ e atteinte qu’après sa séparation avec sa conjointe, en 2009 — Comme la victime a déposé son action en 2010, sa réclamation n’était pas prescrite — Victime a réussi a` faire la dém- onstration, de manière prépondérante, qu’elle avait et´´ e agressée sexuellement et que son oncle a commis une faute — Preuve révélait que le préjudice subi par la victime alors qu’elle etait´ enfant l’a blessée de plusieurs fa¸cons durant sa vie entière — Il fallait prendre note que l’oncle etait´ un membre de la famille, ce qui ne faisait qu’alourdir le préjudice que la victime avait subi — Par conséquent, l’oncle a et´´ e condamné a` payer 150 000 $ en dommages-intérêts a` la victime. Réparations –––– Dommages-intérêts — Dommages-intérêts fondés sur la responsabilité délictuelle — Préjudice personnel — Divers –––– Victime a et´´ e agressée sexuellement par son oncle entre les agesˆ de 9 et 17 ans — Traumatisée et paralysée par la peur, la victime a décidé de ne pas parler des agressions — Victime n’a dénoncé les abus a` la police qu’à l’âge de 33 ans — Oncle a et´´ e arrêté et inculpé d’agression sexuelle — Au terme du procès criminel, l’oncle a et´´ e acquitté — Victime a déposé une action en dommages a` l’encontre de l’oncle, visant a` obtenir 200 000 $ en dommages-intérêts généraux et 35 000 $ en dommages-intérêts exemplaires — Action accueillie — Victime a réussi a` faire la démonstration, de manière prépondérante, qu’elle avait et´´ e agressée sexuellement et que son oncle a commis une faute — Dommages-intérêts dans le cas d’agression sexuelle devraient etreˆ evalu´´ es sur une base individuelle — Preuve révélait que le préjudice subi par la victime alors qu’elle etait´ enfant l’a blessée de plusieurs fa¸cons durant sa vie entière — Par conséquent, l’oncle devait etreˆ condamné a` payer 125 000 $ en dommages-intérêts généraux a` la victime. Réparations –––– Dommages-intérêts — Dommages-intérêts exemplaires, punitifs et majorés — Principes généraux –––– Victime a et´´ e agressée sexuellement par son oncle entre les agesˆ de 9 et 17 ans — Traumatisée et paralysée par la peur, la victime a décidé de ne pas parler des agressions — Victime n’a dénoncé les abus a` la police qu’à l’âge de 33 ans — Oncle a et´´ e arrêté et inculpé d’agression sexuelle — Au terme du procès criminel, l’oncle a et´´ e acquitté— Victime a déposé une action en dommages a` l’encontre de l’oncle, visant a` obtenir 200 000 $ en dommages-intérêts généraux et 35 000 $ en dommages- intérêts exemplaires — Action accueillie — Victime a réussi a` faire la démon- stration, de manière prépondérante, qu’elle avait et´´ e agressée sexuellement et 136 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th) que son oncle a commis une faute — En vertu de la loi québécoise, les dommages-intérêts exemplaires ne sont octroyés que si le préjudice a et´´ e intention- nellement infligé — En l’espèce, il etait´ evident´ que l’oncle se trouvait en position d’autorité lorsqu’il a commencé a` agresser la victime — Il fallait prendre note que l’oncle etait´ un membre de la famille, ce qui ne faisait qu’alourdir le préjudice que la victime avait subi — Par conséquent, l’oncle devait etreˆ con- damné a` payer 25 000 $ en dommages-intérêts exemplaires a` la victime. Torts –––– Trespass — Trespass to person — Assault and battery — Sexual assault –––– Between ages of 9 and 17, victim was sexually abused by his uncle — Traumatized and paralyzed with fear, victim decided not to talk about assaults — Victim only reported abuse to police when he was 33 — Uncle was arrested and charged with sexual assault — At outcome of criminal trial, uncle was acquitted — Victim brought action for damages against uncle, seeking $200,000 in general damages and $35,000 in exemplary damages — Action allowed — Evidence showed that uncle admitted being alone with victim on several occasions — Expert witness was of opinion that victim’s factual description was consistent with that of victims who have been sexually assaulted when they were children — Victim seemed very uncomfortable and embarrassed trying to remember relevant facts — In contrast, uncle’s testimony was over-detailed and uncle himself seemed distant and uninterested — Victim successfully showed, on balance of probabilities, that he had been sexually abused and that his uncle committed fault — Evidence showed that prejudice suffered by victim when he was child affected him in many ways throughout his entire life — It had to be noted that uncle was member of family of victim, which only increased prejudice suffered by him — Therefore, uncle should be ordered to pay $150,000 in damages to victim. Civil practice and procedure –––– Limitation of actions — Actions in tort — Specific actions — Trespass to person — Sexual assault or abuse –––– Be- tween ages of 9 and 17, victim was sexually abused by his uncle — Traumatized and paralyzed with fear, victim decided not to talk about assaults — Victim only reported abuse to police when he was 33 — Uncle was arrested and charged with sexual assault — At outcome of criminal trial, uncle was acquitted — Vic- tim brought action for damages against uncle, seeking $200,000 in general damages and $35,000 in exemplary damages — Action allowed — Court of Appeal held that it is often impossible for victims of sexual abuse to act for certain period of time — Hence, time limitation period for actions for damages in such cases only starts to run when victim discovers link between prejudice suffered and sexual abuse — Expert witness explained that, while victim knew he had been abused, he remained silent in fear of his uncle and that victim only realized how deeply he was hurt after he separated from his spouse, in 2009 — As victim brought his action in 2010, his claim was not time-barred — Victim successfully showed, on balance of probabilities, that he had been sexually abused and that C. (H.) c. C. (V.) 137

his uncle committed fault — Evidence showed that prejudice suffered by victim when he was child affected him in many ways throughout his entire life — It had to be noted that uncle was member of family of victim, which only increased prejudice suffered by him — Therefore, uncle should be ordered to pay $150,000 in damages to victim. Remedies –––– Damages — Damages in tort — Personal injury — Miscella- neous –––– Between ages of 9 and 17, victim was sexually abused by his uncle — Traumatized and paralyzed with fear, victim decided not to talk about assaults — Victim only reported abuse to police when he was 33 — Uncle was arrested and charged with sexual assault — At outcome of criminal trial, uncle was acquitted — Victim brought action for damages against uncle, seeking $200,000 in general damages and $35,000 in exemplary damages — Action allowed — Victim successfully showed, on balance of probabilities, that he had been sexually abused and that his uncle committed fault — Damages in cases of sexual abuse should be assessed on individual basis — Evidence showed that prejudice suffered by victim when he was child affected him in many ways throughout his entire life — Therefore, uncle should be ordered to pay $125,000 in general damages to victim. Remedies –––– Damages — Exemplary, punitive and aggravated damages — General principles –––– Between ages of 9 and 17, victim was sexually abused by his uncle — Traumatized and paralyzed with fear, victim decided not to talk about assaults — Victim only reported abuse to police when he was 33 — Uncle was arrested and charged with sexual assault — At outcome of criminal trial, uncle was acquitted — Victim brought action for damages against uncle, seeking $200,000 in general damages and $35,000 in exemplary damages — Action allowed — Victim successfully showed, on balance of probabilities, that he had been sexually abused and that his uncle committed fault — Under Quebec law, exemplary damages are only awarded where prejudice was intentionally inflicted — Here, it was obvious that uncle was in position of authority when he started to abuse victim — It had to be noted that uncle was member of family of victim, which only increased prejudice suffered by him — Therefore, uncle should be ordered to pay $25,000 in exemplary damages to victim. Cases considered by Dulude, J.C.S.: A. (M.) v. Stations de la Vallée de St-Sauveur inc. (2010), EYB 2010-178263, 2010 CarswellQue 8593, 2010 QCCA 1509, [2010] R.J.Q. 1872, [2010] R.R.A. 625 (C.A. Que.) — referred to C. (S.) c. Lachance (2010), 2010 SCC 44, 2010 CarswellQue 10866, 2010 Car- swellQue 10867, (sub nom. Christensen v. Archevêque catholique romain de Québec) 408 N.R. 134, 79 C.C.L.T. (3d) 1, (sub nom. C. (S.) v. Roman Catholic Archbishop of Québec) 326 D.L.R. (4th) 193, (sub nom. 138 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

Christensen v. Archevêque catholique romain de Québec) [2010] 2 S.C.R. 694 (S.C.C.) — considered De Montigny c. Brossard (Succession) (2010), 2010 SCC 51, 2010 CarswellQue 11312, 2010 CarswellQue 11313, 78 C.C.L.T. (3d) 1, (sub nom. de Montigny v. Brossard (Succession)) 408 N.R. 80, 62 E.T.R. (3d) 161, 325 D.L.R. (4th) 577, (sub nom. de Montigny v. Brossard (Succession)) [2010] 3 S.C.R. 64, [2010] S.C.J. No. 51 (S.C.C.) — referred to Gauthier c. Beaumont (1998), 1998 CarswellQue 541, (sub nom. Gauthier v. Lac Brôme (Ville)) 228 N.R. 5, (sub nom. Gauthier v. Beaumont) 162 D.L.R. (4th) 1, [1998] 2 S.C.R. 3, 1998 CarswellQue 542, [1998] S.C.J. No. 55 (S.C.C.) — considered H. (L.) c. G. (L.) (2008), EYB 2008-148455, 2008 QCCS 4646, 2008 Carswell- Que 9775 (C.S. Que.) — considered K. (J.) c. D. (S.) (2009), EYB 2009-158619, 2009 QCCS 6770, 2009 Carswell- Que 4451, 2009 QCCS 2004, [2009] R.R.A. 651 (C.S. Que.) — referred to L. (D.) c. La. (R.) (Succession) (2010), EYB 2010-174265, 2010 QCCS 2077, 2010 CarswellQue 4856, [2010] R.R.A. 677 (C.S. Que.) — referred to L. (P.) c. L. (J.) (2011), 2011 QCCA 1233, EYB 2011-192579, 2011 Carswell- Que 6743, [2011] R.J.Q. 1274 (C.A. Que.) — considered Lindal v. Lindal (No. 2) (1981), [1982] 1 W.W.R. 433, [1981] 2 S.C.R. 629, 19 C.C.L.T. 1, 34 B.C.L.R. 273, 129 D.L.R. (3d) 263, 39 N.R. 361, 1981 Car- swellBC 396, 1981 CarswellBC 632, [1981] S.C.J. No. 108 (S.C.C.) — referred to M. (K.) v. M. (H.) (1992), 142 N.R. 321, (sub nom. M. c. M.) [1992] 3 S.C.R. 6, 96 D.L.R. (4th) 289, 57 O.A.C. 321, 14 C.C.L.T. (2d) 1, 1992 CarswellOnt 841, 1992 CarswellOnt 998, [1992] S.C.J. No. 85, EYB 1992-67549 (S.C.C.) — considered Olivier c. Canada (Procureur général) (2013), 2013 QCCA 70, EYB 2013- 216764, 2013 CarswellQue 177 (C.A. Que.) — considered P. (G.) c. Binet (2007), EYB 2007-123370, 2007 QCCS 4027, 2007 Carswell- Que 7669, [2007] R.R.A. 715 (C.S. Que.) — considered Tremblay c. Lavoie (2014), EYB 2014-239614, 2014 QCCS 3185, 2014 Car- swellQue 6639, 2014 CarswellQue 14269 (C.S. Que.) — referred to Statutes considered: Charte des droits et libertés de la personne, RLRQ, c. C-12 art. 49 — considered Code civil du Québec, L.Q. 1991, c. 64 en général — referred to art. 1621 — referred to art. 2804 — considered art. 2904 — considered C. (H.) c. C. (V.) Dulude, J.C.S. 139

art. 2925 — considered

ACTION déposée par une victime d’abus sexuels alors qu’elle etait´ enfant récla- mant des dommages-intérêts généraux et exemplaires.

Me Marie-Claude Duval, pour le demandeur Me Genevi`eve Matte, pour le d´efendeur

Dulude, J.C.S.:

1 H... C... (H... C...) réclame 235 000 $ de son oncle, V... Cl... (V... CL...), relativement a` des abus sexuels dont il aurait et´´ e victime alors qu’il est ag´ˆ e entre 9 et 17 ans. 2 V... CL... nie avoir abusé sexuellement de son neveu. A` tout ev´´ enement, il plaide que la réclamation d’H... C... est exagérée et prescrite. 3 Pour les motifs qui suivent, le Tribunal accueille la demande et condamne V... CL... a` payer 150 000 $ a` H... C... en dommages compen- satoires et en dommages exemplaires.

Contexte 4 R... C...et Ro... B...(les C. . .-B...) ont trois enfants. H... C... est le cadet. Il est né le [. . .] 1976. Avec son frère et sa sœur, ils forment une famille unie et heureuse. H... C... est un enfant docile, sportif, enjoué, spontané et affectueux. 5 N... B...(N...)1 est la sœur et la grande amie de Ro... B...(Ro...), la mère d’H.C. Elle est mariée a` V... CL... Le couple Cl...-B...a deux enfants, un peu plus ag´ˆ es que ceux du couple C...-B.... 6 Re... B...(Re...) est le frère cadet de Ro... et N.... Il a aussi deux enfants, un peu plus jeunes que ceux de Ro... et de N.... 7 Les trois familles ainsi que les grands-parents s’entendent a` merveille et le lien qui les unit est solide. 8 Les C...-B...habitent a` Beloeil et les Cl...-B...habitent a` Ville A. Ils se réunissent fréquemment pour toutes sortes d’occasions. Ils vont a` la chasse, ils voyagent et louent des chalets ensemble.

1 L’utilisation du prénom dans le cadre du présent jugement vise a` alléger le texte et l’on voudra bien n’y voir aucune discourtoisie a` l’endroit des personnes visées. 140 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

9 A` titre d’exemple, les trois familles ont coutume de louer un chalet au camp A pour la fin de semaine de la Fête du Travail. 10 Pour cette occasion, des amis du couple C...-B..., soit la famille Cla. . ., louent aussi un chalet au camp A. Tous participent alors a` diverses activités de plein air. 11 Entre autres, les enfants, accompagnés de V... CL... et de R... C...(R...), entretiennent la tradition de se rendre, une nuit, au lac A pour dormir sous la tente. 12 Dans le cadre d’une de ces excursions, V... CL... aurait abusé sexuellement d’H... C... pour la première fois, alors qu’il etait´ ag´ˆ e de neuf ans. Entre 12 et 17 ans, H... C... aurait et´´ e a` nouveau abusé sexuellement par son oncle V... CL... a` trois reprises. 13 Bien que le dernier ev´´ enement se soit produit a` l’aube de ses 18 ans, ce n’est qu’en 2009, soit a` l’âge de 33 ans, qu’H... C... en parle pour la première fois. 14 Le 11 novembre 2009, H... C... porte plainte contre son oncle, V... CL..., aux autorités policières2. V... CL... plaide non coupable aux accusations portées contre lui. 15 Le 13 décembre 2010, H... C... entreprend la présente procédure par laquelle il réclame 235 000 $ pour les dommages subis a` la suite de ces agressions. 16 Le 14 novembre 2012, au terme d’un procès criminel d’un jour, V... CL... est acquitté. 17 H... C... affirme qu’il etait´ incapable de parler de ces ev´´ enements et des agressions dont il a et´´ e victime avant le mois d’octobre 2009, puisqu’il etait´ paralysé par la peur et la honte. C’est a` l’occasion de sa séparation qu’il consulte une psychothérapeute et arrive a` parler de ce qui lui est arrivé. 18 V... CL... nie formellement les agressions. Il affirme qu’il ne s’est jamais rien passé avec H... C... 19 Au surplus, il soutient que la réclamation est exagérée et prescrite puisqu’H... C... n’était pas dans l’impossibilité d’agir avant 2009.

2 Pi`ece P-1. C. (H.) c. C. (V.) Dulude, J.C.S. 141

Questions en litige A) H... C... a-t-il démontré de fa¸con prépondérante que V... CL... a abusé de lui sexuellement?

B) Le cas ech´´ eant, la r´eclamation d’H... C... est-elle prescrite?

C) Quels sont les dommages subis par H... C...?

Analyse A) H... C... a-t-il démontré de fa¸con prépondérante que V... CL... a abusé de lui sexuellement? 20 V... CL... nie avoir abusé sexuellement d’H... C... 21 Le 14 novembre 2012, a` la suite d’un procès d’une journée, il est acquitté des cinq chefs d’accusation portés contre lui pour attouchements et agressions commis a` l’égard d’H... C..., soit : L’accusé subit son procès sur cinq chefs d’accusation, soit de, entre le 23 avril 1985 et le 23 avril 1989, a` différents endroits, soit a` Sainte-Béatrix, Saint-Michel-des-Saints, district de Joliette, Saint-Hi- laire et Saint-Hyacinthe, a, a` des fins d’ordre sexuel, touché une partie du corps de H.C., qui est un enfant de moins de quatorze ans. Egalement,´ entre le 23 avril 1985 et le 23 avril 1989, dans les mêmes districts, d’avoir invité ou engagé ou incité le même plaignant, enfant ag´ˆ e de moins de quatorze ans a` le toucher, commettant ainsi l’acte criminel sous l’article 152. Et egalement,´ entre le 23 avril 1991 et le 23 avril 1993, a` Mascouche, district de Joliette, et a` Ville A, a, a` des fins d’ordre sexuel, touché une partie du corps de H.C., adolescent vis-à-vis duquel il etait´ en situation d’autorité ou de confiance, ou a` l’égard duquel H.C. etait´ en situation de dépendance. Et egalement´ dans les mêmes dates et aux mêmes endroits, d’avoir engagé ou incité un adolescent a` le toucher alors qu’il etait´ en situation d’autorité ou de confiance vis-à-vis celui-ci. Et enfin, entre le 23 avril 1985 et le 23 avril 1989, a` Mascouche, Sainte-Béatrix et Saint-Michel-des-Saints, et a` Mont-Saint-Hilaire et a` Saint-Hyacinthe et a` Ville A, d’avoir agressé le même plaignant, 142 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

commettant ainsi l’acte criminel en vertu de 271-1.A du Code criminel.3 22 Le fardeau de preuve en matière criminelle et civile etant´ différent, tous conviennent que le Tribunal n’est pas lié par cette décision4. 23 Par ailleurs, la preuve administrée dans le cadre du présent procès est plus détaillée et bien différente de celle présentée lors du procès criminel5. 24 A` l’audience, H... C... décrit les ev´´ enements lors desquels il est victime d’abus sexuel ainsi:

Le premier ev´´ enement 25 Les premiers attouchements ont lieu lors d’une fin de semaine de la Fête du Travail au cours de laquelle tous se réunissent au camp A. 26 H... C... est alors ag´ˆ e de 9 ans. 27 Comme le veut la coutume, les enfants, accompagnés de V... CL... et R..., décident de faire l’excursion habituelle au lac A, pour dormir sous la tente. 28 Le lac A est accessible par des sentiers situés dans le bois a` 30 minutes de marche des chalets du camp A. 29 Près du lac, une grande tente de type « Prospector » est erig´´ ee sur un plancher de bois a` l’intérieur de laquelle sont alignés des lits de camp de chaque côté de l’entrée. 30 Le soir venu, tous dorment sous la tente. A` cette epoque,´ H... C... doit se lever régulièrement la nuit pour aller aux toilettes. Il est donc couché sur un des lits situés près de l’entrée.

3 Jugement rendu le 14 novembre 2012 par l’honorable Gilles Garneau dans la cause 700-01-099897-111 (pièce D-4). 4 En matière criminelle, l’infraction doit etreˆ prouvée hors de tout doute raisonnable alors qu’en matière civile, le Code civil du Québec prévoit : 2804. La preuve qui rend l’existence d’un fait plus probable que son inexistence est suffisante, a` moins que la loi n’exige une preuve plus convaincante. 5 Le Tribunal a entendu en cinq jours de procès plusieurs témoins et experts qui n’ont pas témoigné lors du procès criminel. De plus, plusieurs pièces ont et´´ e produites en vue de préciser les détails entourant les ev´´ enements et leurs dates. C. (H.) c. C. (V.) Dulude, J.C.S. 143

31 Alors que les autres enfants et son père dorment, H... C... soutient que V... CL... glisse ses mains sous son sac de couchage, dans sa culotte, et le masturbe tout en lui chuchotant: « H..., est-ce que tu aimes ca?¸ Est-ce que tu aimes ca¸ H... ? ». Par la suite, il prend la main d’H... C... pour se faire masturber lui-même, tout en l’embrassant dans le cou. H... C... tremble, il a peur, mais il ne dit rien. 32 Ce soir-là, V... CL... prie H... C... de garder le silence sur ces ev´´ enements, en lui précisant qu’il ferait beaucoup de peine a` sa tante et briser- ait le lien familial s’il en parlait. 33 Ainsi, au retour de l’excursion, H... C... est perturbé. Il a honte et il croit qu’il est responsable de ce qui lui est arrivé. Il choisit donc de ne pas en parler. 34 A` compter de ce jour, H... C... se renferme sur lui-même. Il devient impatient et colérique. 35 H... C... admet etreˆ retourné par la suite au camp A avec sa famille, mais il précise qu’il ne s’est plus jamais rien passé a` cet endroit. 36 Par contre, il soutient que trois autres ev´´ enements sont survenus lors desquels V... CL... lui a fait des attouchements sexuels.

Le deuxième ev´´ enement 37 Le deuxième ev´´ enement se produit en 19876, alors qu’il est ag´ˆ e de 11 ans. 38 A` l’époque, V... CL... travaille dans une compagnie d’assurances. Dans le cadre de ses fonctions, il doit assister a` un congrès annuel a` Saint-Hyacinthe, a` proximité de la ville où réside le couple C...-B.... 39 Un soir, lors des séries eliminatoires´ de hockey, V... CL... offre aux C...-B...d’emmener H... C... visionner la partie de hockey au restaurant de l’hôtel où il se trouve, puisqu’il sait, dit-il, qu’H... C... est un pas- sionné de hockey. 40 H... C... affirme que V... CL... le conduit plutôt a` l’Auberge A et abuse sexuellement de lui dans une des chambres de l’hôtel. Cette fois, il

6 Selon ce qu’estime aujourd’hui H. C. en fonction des années où il a et´´ e pensionnaire au Collège A soit de 1988 a` 1992. La preuve révèle que, contrairement a` ce qu’affirme V. C., cet ev´´ enement est survenu avant qu’il ne soit pensionnaire puisque c’était un soir de semaine (un jeudi), au printemps, pendant l’année scolaire et H. C. etait´ chez lui ce soir-là, lorsque son oncle l’a invité. 144 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

va plus loin dans ses gestes de nature sexuelle. H... C... se retrouve nu dans le lit avec V... CL... Ce dernier le caresse et l’incite a` le toucher. Les abus sont alors des attouchements de part et d’autre des organes génitaux, de masturbation et de fellations. 41 Encore une fois, V... CL... insiste pour qu’il garde le silence sur ces ev´´ enements. Il lui dit que sa famille sera détruite s’il décide d’en parler. 42 H... C... est troublé. Il est convaincu que son oncle a raison. S’il parle, il fera beaucoup de peine a` ses parents et a` sa tante. Il craint de briser les liens familiaux. A` tout ev´´ enement, il est persuadé que personne ne le croira s’il dénonce les gestes posés a` son egard.´ 43 A` compter de l’âge de 12 ans, H... C... devient un jeune gar¸con bien différent. Il est renfermé et peu souriant. Il commence a` consommer de l’alcool et de la drogue pour oublier, dit-il.

Le troisième ev´´ enement 44 Alors qu’il est ag´ˆ e de 16 ans, H... C... a de la difficulté a` se trouver un emploi. V... CL... offre aux C...-B...d’engager H... C... pour laver les vitres d’un de ses immeubles, ce qui lui permettra de gagner un peu d’argent. Par le fait même, il offre a` H... C... d’aller avec lui en avion a` Kingston pour aller souper avec son cousin et sa tante N... pour son anniversaire. 45 Ainsi, Ro..., la mère d’H... C... va le conduire chez les Cl...-B...la veille de la visite a` Kingston. V... CL... est alors seul puisque sa femme passe la semaine avec son fils, qui est militaire a` Kingston. 46 H... C... soutient que son oncle a loué des films pornographiques et il lui a demandé de reproduire les gestes des acteurs. Les abus sexuels ont lieu dans le sous-sol de la résidence du couple Cl...-B.... Les gestes répréhensibles allégués sont les mêmes que lors du deuxième ev´´ enement. Il s’agit de caresses des organes génitaux, de masturbation et de fellations. 47 H... C... ne peut confirmer si, le lendemain, il a dans les faits lavé les vitres des immeubles de V... CL... Il admet ne garder aucun souvenir précis a` cet egard.´ 48 Par contre, il affirme que les attouchements de nature sexuelle se sont poursuivis dans l’avion entre Mascouche et Kingston. Arrivé a` Kingston, il se souvient qu’ils ont soupé avec le fils aˆıné du couple Cl...-B...et sa tante N..., puis ils sont revenus le soir même. C. (H.) c. C. (V.) Dulude, J.C.S. 145

49 Par la suite, H... C... ne se souvient plus de rien. Il ne peut préciser quand ni comment il est revenu chez lui. 50 Encore une fois, au retour, il est incapable de parler de ce qui s’est produit. Il a peur de détruire sa famille et de faire de la peine a` ses parents. Des sentiments de honte et de culpabilité l’habitent sans cesse.

Le quatrième ev´´ enement 51 V... CL... et R... ont, a` cette epoque,´ l’habitude d’aller a` la chasse, deux a` trois semaines après la fin de semaine de la Fête du Travail. Ainsi, les deux beaux-frères se rendent, la fin de semaine précédant la chasse, sur le site pour préparer, vérifier et installer les equipements.´ 52 Or, une année, R... informe V... CL... qu’il ne peut l’accompagner la fin de semaine précédant la chasse compte tenu de contraintes profes- sionnelles. C’est ainsi que V... CL... propose d’amener H... C... a` sa place pour l’aider. 53 H... C... hésite, il ne veut pas y aller. Sa mère est perplexe et elle ne comprend pas son hésitation. Afin d’éviter de susciter un questionne- ment, il finit par accepter. Il ne veut surtout pas soulever un doute quant aux ev´´ enements passés. 54 H... C... soutient qu’il a alors et´´ e abusé sexuellement, a` de multiples reprises : dans l’auto en se rendant au site de chasse et dans la fourgon- nette, où est installé un lit que V... CL... et R... utilisent lorsqu’ils se rendent a` la chasse. 55 Comme H... C... est plus vieux, cette fois, il admet avoir lui-même fait des attouchements a` son oncle. Les abus sont si intenses au cours de cette fin de semaine qu’il dit avoir eu mal aux organes génitaux pendant plusieurs jours par la suite. 56 H... C... se sent d’autant plus coupable et responsable de ce qui lui arrive. Il a honte, il se sent impuissant et il ne veut pas parler de ces ev´´ enements, de peur de ne pas etreˆ cru. Ainsi, tout comme il l’a fait dans le passé, il se renferme avec son secret. Il veut oublier. 57 Bref, selon H... C..., ces quatre ev´´ enements distincts se déroulent alors qu’il est ag´ˆ e entre 9 et 17 ans. Il vit donc une adolescence guidée par le traumatisme, hanté par la honte et la peur que son secret ne soit dévoilé. 58 Avant 2009, H... C... n’a jamais parlé de ces ev´´ enements et des agressions dont il a et´´ e victime. Il est convaincu que personne ne le croira. Il craint de détruire sa famille et faire de la peine a` ses parents. Il est sub- 146 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

mergé par la honte et il eprouve´ des sentiments constants de culpabilité et de colère refoulés. 59 Ainsi, entre 1993 et 2000, le parcours tant scolaire qu’émotionnel d’H... C... est plutôt instable. Il connaˆıt peu de succès, ses relations interpersonnelles sont superficielles. Il est incapable de communiquer ou de développer de réelles relations intimes ou même d’amitié. Il eprouve´ des problèmes sérieux de consommation. 60 En 2002, il rencontre la femme avec laquelle il aura deux enfants. Malgré presque sept ans de vie commune, il n’arrive pas a` développer une vraie relation intime. Il est incapable de prendre soin d’elle puisqu’il ne peut, a` la base, s’occuper de lui-même. Ses problèmes de consommation perdurent. 61 Ce n’est qu’en 2009, lors de sa rupture avec sa conjointe, qu’il réalise a` quel point il est toujours troublé par les agressions dont il a et´´ e victime. Il consulte alors son médecin qui, lorsqu’informé des abus, le réfère a` une psychothérapeute7. Cette démarche l’amène a` parler des abus dont il a et´´ e victime au conjoint de sa sœur puisqu’il n’est pas de la famille, dit- il. Sa confession lui donne toutefois le courage de parler des ev´´ enements a` sa sœur et a` sa psychothérapeute. 62 H... C... est alors ag´ˆ e de 33 ans. 63 Dans le cadre de sa thérapie, il rédige des documents dans lesquels il résume les faits et enum`´ ere ses emotions´ et ses sentiments8. La psychothérapeute conclut alors qu’il souffre d’une dépression majeure et d’un choc post-traumatique lié aux agressions dont il a et´´ e victime alors qu’il etait´ enfant9. 64 C’est a` la suite de sa rencontre avec la psychothérapeute qu’H... C... décide, pour la première fois, d’en parler a` son ex-conjointe10, puis a` ses parents.

7 Il consulte la psychothérapeute pour la première fois en octobre 2009. 8 Pièces P-4, P-5 et P-6. 9 La psychothérapeute n’a pas témoigné a` procès et le défendeur s’oppose a` la production de son rapport. La référence a` l’opinion de l’expert dans le cadre du témoignage d’H... et dans le présent jugement n’a que pour but d’expliquer ce qui a amené H. C. a` parler de ses abus. 10 H. C. admet avoir mentionné a` sa conjointe au printemps 2009 que son oncle lui avait fait des attouchements lorsqu’il etait´ jeune, mais il a précisé qu’il l’avait C. (H.) c. C. (V.) Dulude, J.C.S. 147

65 A` l’audience, c’est avec beaucoup d’émotion qu’il admet avoir eu de la difficulté a` annoncer cette nouvelle a` ses parents. En premier lieu, il l’annonce a` sa mère, puis lorsque son père arrive, il lui demande de ne pas se fâcher. Manifestement, en 2009, il a toujours peur de la réaction de ses parents. 66 Lorsqu’informés des ev´´ enements, les C...-B...sont atterrés. Ils croient leur fils. H... C... est en pleurs. Il eprouve´ de la difficulté a` parler des agressions. Il est evident´ qu’il ne ment pas et qu’il ne va pas bien, disent- ils. Ils lui recommandent alors de porter plainte pour ces agressions et lui offrent de l’accompagner au poste de police pour donner sa déclaration. 67 Ainsi, H... C... rédige, a` la demande de sa psychothérapeute, un ré- sumé des ev´´ enements qu’il remettra par la suite au détective responsable de sa plainte11. 68 Lorsqu’informée de ce qui s’est passé avec V... CL..., Ro... ne veut pas parler a` sa sœur, N.... C’est ainsi qu’elle décide d’en parler avec son frère Re..., qui suggère une rencontre entre lui et ses deux sœurs. 69 Lorsque N... est mise au courant de la nature des plaintes portées par son neveu, elle se dit incapable d’affronter son mari. Ainsi, c’est Re... qui rencontre son beau-frère V... CL... pour l’aviser qu’H... C... vient de dévoiler « la relation privilégiée »12 qu’il a entretenue avec lui lorsqu’il etait´ jeune. 70 Bien qu’aujourd’hui V... CL... nie les agressions, son beau-frère Re... précise, dans un témoignage empreint de sincérité, que c’est plutôt sans surprise qu’il accueille la nouvelle. 71 Curieusement, lorsque Re... l’informe qu’H... C... a porté plainte, V... CL... ne pose aucune question, il ne lui demande pas a` quelle « relation privilégiée » il fait référence. En fait, lorsque Re... lui demande s’il y a eu d’autres « victimes », V... CL... répond « Ne cherchez-en pas d’autres, il n’y en a pas d’autres »13. Lorsqu’informé que la sœur d’H...

alors repoussé. Il etait´ a` ce moment incapable de parler réellement de ce qui s’était passé. 11 Pièce P-1. 12 A` l’audience, Re... dit avoir utilisé ce terme pour ne pas l’accuser et lui laisser la chance de s’expliquer. 13 Témoignage de Re... B...lors de l’audience. 148 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

C... a aussi parlé de gestes inappropriés, il répond qu’il ne s’est rien passé avec elle. 72 Ainsi, V... CL... accepte, sans argumenter, de quitter son domicile, a` la demande de Re.... A` cet egard,´ V... CL... précise qu’en 2009, il a des problèmes de santé importants et que, dans sa condition, il est préférable d’éviter une rencontre avec toute la famille. V... CL... ne reviendra jamais vivre a` la résidence familiale par la suite. Lorsqu’informé des accusations portées par H... C..., V... CL... rencontre son fils a` la demande de ce dernier. Depuis cette rencontre, son fils refuse de le voir14. 73 Depuis qu’H... C... a porté plainte, V... CL... ne vit plus avec N...15, il ne voit plus ses enfants et ses petits-enfants. V... CL... affirme qu’il préfère ne pas voir sa famille tant qu’il sera considéré comme un agresseur. Il n’aime pas se faire regarder « croche »16. 74 A` l’audience, H... C... affirme que le lien familial est brisé depuis qu’il a dénoncé les abus. Les occasions de se voir et de se rencontrer sont presqu’inexistantes et, pour sa part, il ne parle plus a` sa tante N..., a` son cousin ou a` sa cousine17. H... C... précise qu’il n’y a donc plus rien comme avant. 75 En 2010, H... C... cesse sa consommation de drogue et en 2012, d’alcool. 76 A` l’audience, V... CL... témoigne de fa¸con détachée. Il dit calmement ne pas avoir abusé d’H... C... Il le regarde et lui dit simplement « Je les ai pas posés H... les gestes, tu le sais très bien a` part de ca,¸ alors viens pas dire que j’ai posé des gestes comme ca¸ ». 77 Cela etant,´ il reconnaˆıt avoir et´´ e seul avec H... C... lors des ev´´ enements précédemment décrits18. Il affirme simplement qu’ils ne se sont pas produits aux dates mentionnées par H... C... Il souligne cependant

14 A` l’audience, le fils de V. C. explique qu’il a choisi de ne pas prendre position relativement aux accusations et c’est pourquoi il a décidé de ne plus voir son père. 15 Le couple n’est toutefois pas divorcé. 16 Témoignage de V. C. a` l’audience. 17 Soit les enfants du couple C...-B. . .. 18 A` l’exception du premier ev´´ enement qui se déroule la nuit alors que tous dorment sous la même tente. C. (H.) c. C. (V.) Dulude, J.C.S. 149

que la version d’H... C... n’est pas crédible en raison des diverses contradictions notées avec ses différentes versions antérieures. 78 A` cet egard,´ V... CL... produit un tableau préparé en vue de résumer les différentes contradictions notées dans les versions antérieures d’H... C...19, soit sa version ecrite´ (11 novembre 2009)20, lors de son interro- gatoire hors Cour (28 février 2011)21, lors de l’enquête préliminaire (20 janvier 2012)22 et lors du procès criminel (13 novembre 2012)23. 79 Il ne convient pas de commenter toutes les contradictions pour les fins du présent jugement, puisqu’elles portent essentiellement sur certains détails ayant entouré les ev´´ enements et plus particulièrement, quant a` la chronologie des trois derniers. 80 A` ce sujet, H... C... admet s’être trompé sur les années lors desquelles les ev´´ enements se sont produits. Il précise que les versions ecrites´ ont et´´ e rédigées dans le cadre de sa thérapie ou pour les fins de la déclaration au service de police. Il devait décrire les ev´´ enements en ce qui concerne les abus. Pour lui, la chronologie et les dates de ces ev´´ enements n’avaient alors pas d’importance. 81 Quant au procès criminel, H... C... a rencontré le procureur de la Couronne que quelques minutes avant l’audition. Il rapporte que personne ne lui a mentionné que la chronologie et les détails entourant les situations lors desquelles il a et´´ e abusé etaient´ importants. Pour lui, seuls les abus dont il a et´´ e victime etaient´ au cœur du litige. 82 C’est en discutant avec ses parents a` la suite du procès criminel qu’il a réalisé que certains ev´´ enements ne pouvaient s’être produits aux dates préalablement déclarées. 83 Cela etant,´ de l’admission même de V... CL..., il y a bien eu trois ev´´ enements après le camp A, lors desquels V... CL... s’est retrouvé seul avec H... C... et ce, peu importe l’année où cela s’est produit.

19 Tableaux produits lors des plaidoiries par l’avocate de V. C. 20 Pièce P-1. 21 Pièces D-7, D-8, D-9, D-11, D-12, D-13, D-14, D-16, D-17, D-18, D-20. 22 Pièces D-10, D-12, D-15, D-19 et D-21. 23 Pièce D-4. 150 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

84 V... CL... admet avoir amené H... C... voir une partie d’hockey pendant son congrès qui se déroulait a` Saint-Hyacinthe24, mais affirme que cet ev´´ enement a eu lieu en 1994. Il nie cependant avoir amené H... C... a` l’Auberge A25. Il dit avoir amené H... C... dans sa chambre a` l’hôtel où se déroulait le congrès, mais il précise que les rideaux et la porte etaient´ ouverts26. 85 V... CL... admet aussi avoir amené H... C... en avion a` Kingston pour voir sa femme et son fils27 et l’avoir invité pour laver les vitres de son immeuble. Il précise cependant qu’il est allé chercher H... C... au métro Henri-Bourassa le matin même28, mais il reconnaˆıt qu’H... C... a dormi chez lui le soir au retour de Kingston. 86 Finalement, il admet avoir invité H... C... une fin de semaine a` Casey pour préparer la chasse29. 87 Il n’est pas etonnant´ qu’aujourd’hui, plus de 20 ans plus tard, H... C... ait eprouv´´ e de la difficulté a` se souvenir de l’âge exact qu’il avait et des circonstances précises ayant entouré les abus qui se sont, a` tout ev´´ enement, tous déroulés entre 9 et 17 ans. 88 D’ailleurs, en ce qui concerne les agressions, le Dr. Georges-Henri Arenstein, psychologue, l’expert d’H... C... précise : b. Discussion Une concordance entre le profil de personnalité de M. H... C... (les tests), sont récit (entrevue), ainsi que les témoignages des tiers, milite en faveur d’une véracité de ses dires.

24 Les parents de H. C. confirment d’ailleurs que V. C. a invité H. C., un soir de semaine lors des séries eliminatoires,´ a` visionner la partie d’hockey. 25 Il affirme d’ailleurs ne pas connaˆıtre l’Auberge A. Or, cet hôtel est bien connu dans la région et V. C. a, de sa propre admission, circulé sur la route où est situé cet hôtel a` de multiples reprises lorsqu’il fréquentait sa femme, a` l’époque où elle vivait chez ses parents. 26 V. C. ajoute même qu’il y avait des bourgeons dans les arbres! Son témoignage a` cet egard´ est farfelu. 27 Ce qui est d’ailleurs confirmé par sa femme et son fils a` l’audience. 28 Ce qui est nié par les parents d’H. C. a` l’audience puisque Ro. . . affirme qu’elle a plutôt conduit son fils la veille chez V. C. directement. 29 Ce qui est d’ailleurs confirmé par les parents d’H. C. a` l’audience. C. (H.) c. C. (V.) Dulude, J.C.S. 151

Il apparaˆıt que la condition psychologique de M. H... C... est tout a` fait compatible avec celle de personnes qui ont et´´ e victime d’abus sexuels en bas age.ˆ 30 89 Le témoignage de l’expert a` cet egard´ est crédible. Son analyse est sérieuse et rigoureuse. 90 A` l’audience, la douleur d’H... C... est perceptible. Il eprouve´ clairement de la difficulté a` parler de ces ev´´ enements. Il est toujours troublé. Dans le cadre de son témoignage, il doit se remémorer avec précision les ev´´ enements qu’il a péniblement tenté d’oublier pendant toutes ces années. 91 Contrairement a` ce qu’affirme V... CL..., son témoignage est crédible, et ce, malgré les différentes contradictions notées dans ses versions antérieures. 92 V. C souligne qu’H... C... a même inversé dans ses versions antér- ieures les dates des derniers ev´´ enements alors que son propre expert confirme que le dernier ev´´ enement est important et significatif pour une victime d’abus puisque c’est a` ce moment que se terminent les agressions. 93 Les explications d’H... C... concernant ces contradictions sont hon- nêtes. A` cet egard,´ de multiples pièces ont et´´ e produites a` l’audience pour etablir´ de fa¸con plus précise les dates où les ev´´ enements sont survenus31. Il n’est pas nécessaire de revoir les différentes contradictions a` la lumière des pièces justificatives produites puisque le Tribunal est convaincu qu’H... C... n’a pas inventé cette histoire et les abus sexuels qu’il décrit se sont produits. 94 A` l’inverse, V... CL... soulève des détails anodins en vue de contredire H.C. Ses explications ne sont pas crédibles. 95 A` titre d’exemple, la sœur d’H... C... a témoigné. Elle a affirmé avoir et´´ e elle-même victime de gestes intrusifs de la part de V... CL... alors

30 Pièce P-3. 31 A` titre d’exemple, V. C. attaque la crédibilité d’H. C. en tentant de démontrer que l’événement de Casey s’est passé en 1994, soit plus tard que ce qu’H. C. a mentionné précédemment. Il produit des photos du canot utilisé a` cette occasion. Les parents d’H. C. ont pour leur part retrouvé un vidéo pour contredire le témoignage de V. C. a` ce sujet. Quoi qu’il en soit, après le visionnement, tous conviennent qu’H. C. est allé a` Casey avec V. C. pour préparer la chasse en septembre 1993. 152 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

qu’elle avait environ 15 ans, mais elle a repoussé son oncle32. De la même fa¸con, la mère d’H... C... dit que V... CL... a aussi posé des gestes inadéquats a` son egard´ lorsqu’elle etait´ jeune. 96 Or, la version de V... CL... concernant les ev´´ enements relatés par la mère et la sœur d’H... C... est peu plausible. Avec un sourire en coin, V... CL... relate a` l’audience l’événement du camp A lorsqu’il s’est baigné et qu’il s’est retrouvé nu devant la sœur d’H... C... Il soutient n’avoir posé aucun geste susceptible de reproches. Pour la mère d’H... C..., il affirme que c’est plutôt elle qui lui a fait des avances. Ses explications a` ce sujet sont anormalement détaillées alors que les ev´´ enements se sont déroulés il y a plus de trente ans. 97 Lorsque contre-interrogé sur les deux autres nièces qui ont aussi af- firmé avoir et´´ e victimes d’attouchements, il rejette froidement ces allégations. 98 Le Tribunal note que, contrairement aux autres membres de la famille qui témoignent a` procès, V... CL... n’est pas emotif´ malgré les consé- quences majeures qui découlent de la dénonciation d’H... C... Depuis qu’H... C... a parlé des agressions, il ne voit plus son fils, sa fille, ses petits-enfants et il est séparé de sa femme. 99 Malgré tout, il témoigne avec détachement, presque avec indiffér- ence33. Ses explications relèvent beaucoup plus de la justification que de la négation. Il semble avoir une mémoire plutôt sélective. Il tente simplement de contredire H... C... sur des détails et des dates alors qu’il s’est lui-même trompé sur l’année de l’événement de Casey. 100 V... CL... semble s’acharner a` démontrer que deux des ev´´ enements se sont produits en 1994 alors qu’H... C... est ag´ˆ e de 18 ans. A` l’audience, avec les pièces produites, force est de constater que les ev´´ enements de Kingston et de Casey se sont produits en 1992 et 1993 alors qu’H... C... est ag´ˆ e de 16 et 17 ans34. A` tout ev´´ enement, cela est peu important puisque V... CL... reconnaˆıt avoir invité H... C... lors des trois derniers ev´´ enements.

32 Lorsqu’elle témoigne, elle demande a` ses parents de sortir de la salle de cour. Elle est visiblement toujours mal a` l’aise de relater ces ev´´ enements. 33 Pourtant, lorsqu’il parle de ses troubles de santé en 2009, son emotion´ est perceptible. 34 Quant a` l’événement du hockey, la preuve prépondérante démontre qu’il s’est produit en 1987 et non en 1994, comme l’affirme V. C. C. (H.) c. C. (V.) Dulude, J.C.S. 153

101 De l’avis du Tribunal, la preuve prépondérante démontre que les agressions sexuelles se sont produites alors qu’il etait´ seul avec H... C... dans le cadre des quatre ev´´ enements préalablement décrits. 102 Les contradictions auxquelles V... CL... réfère ont pu etreˆ suffisantes pour soulever un doute raisonnable au terme du procès criminel qui a duré moins de deux jours devant la Cour du Québec (chambre criminelle). La preuve dont le Tribunal dispose ici, après le procès qui s’est etal´´ e sur cinq jours, permet de conclure de fa¸con prépondérante que V... CL... a abusé sexuellement d’H... C... dans les circonstances et de la manière que ce dernier décrit. 103 V... CL... a donc commis une faute en abusant sexuellement d’H... C... alors qu’il etait´ ag´ˆ e entre 9 et 17 ans. 104 H... a démontré de fa¸con prépondérante qu’il a et´´ e victime d’abus.

B) La réclamation d’H... C... est-elle prescrite? Le droit 105 L’article 2925 du Code civil du Québec prévoit que : 2925. L’action qui tend a` faire valoir un droit personnel ou un droit réel mobilier et dont le délai de prescription n’est pas autrement fixé se prescrit par trois ans. 106 V... CL... soutient que le recours qu’H... C... a intenté en décembre 2010 est prescrit puisque les agressions en cause se sont déroulées entre 1984 et 1993. 107 L’article 2904 du Code civil du Québec prévoit que : 2904. La prescription ne court pas contre les personnes qui sont dans l’impossibilité en fait d’agir soit par elles-mêmes, soit en se faisant représenter par d’autres. 108 Les Tribunaux ont examiné, au cours des dernières années, a` maintes reprises, la question de l’impossibilité d’agir pour les victimes d’agression sexuelle et plus particulièrement dans les cas d’inceste. 109 L’arrêt de principe a` ce sujet est celui de la Cour suprême dans M. (K.) v. M. (H.)35. Dans cette affaire d’inceste, la Cour suprême enseigne : (. . .) pour que le délai de prescription commence a` courir, il faut préalablement que la partie demanderesse soit réellement consciente du préjudice subi et de sa cause probable. C’est au moment où la

35 M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 (S.C.C.). 154 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

victime d’inceste découvre le lien entre le préjudice qu’elle a subi et les faits vécus pendant son enfance que se cristallise la cause d’action. (Soulignements du Tribunal) 110 Quoiqu’il s’agisse d’une décision qui vient de la Common Law, ces principes liés a` l’impossibilité psychologique d’agir des victimes d’agression sexuelle furent maintes fois cités au Québec. 111 La Cour suprême traite d’ailleurs de la notion d’impossibilité d’agir et de la suspension de la prescription dans Gauthier c. Beaumont36 et dans C. (S.) c. Lachance: [134] Le délai de prescription ne peut pas commencer a` courir avant le jour où, pour la première fois, le détenteur du droit a` exercer pouvait effectivement prendre une action en justice, c’est-à-dire a` compter de ce jour où, pour la première fois, il connaissait, ou pouvait raisonnablement connaˆıtre, les trois el´´ ements nécessaires a` l’exercice de son recours (la faute, le préjudice et le lien de causalité entre la faute et le préjudice). Ce n’est, en définitive, qu’à compter de ce moment que les conditions juridiques du droit de poursuite se trouvent enfin réunies et que la cause d’action se cristallise.37 (Soulignements du Tribunal) 112 En 2011, la Cour d’appel précise que dans les cas d’agression sexuelle, et plus particulièrement dans les cas d’inceste, l’impossibilité psychologique d’agir entraˆıne de longs délais entre la survenance des faits et le recours en justice. Le mécanisme d’assouplissement des règles de prescription, tel qu’élaboré par la Cour suprême dans Gauthier c. Beaumont s’applique, en tenant compte des circonstances particulières a` ce type de cause38. 113 Le Tribunal doit donc adopter une approche plus souple et analyser l’impossibilité d’agir en tenant compte du contexte particulier qui prévaut, tout en etant´ conscient de la difficulté pour la victime de faire le lien entre le préjudice subi et les agressions39. 114 Par ailleurs, la Cour suprême reconnaˆıt que l’impossibilité d’agir peut même découler de la faute de la victime elle-même. Parfois, c’est la

36 Gauthier c. Beaumont, [1998] 2 S.C.R. 3 (S.C.C.). 37 C. (S.) c. Lachance, [2010] 2 S.C.R. 694 (S.C.C.). 38 L. (P.) c. L. (J.), 2011 QCCA 1233 (C.A. Que.). 39 Id. C. (H.) c. C. (V.) Dulude, J.C.S. 155

crainte eprouv´´ ee par la victime des agressions qui constitue une impos- sibilité d’agir40. 115 Cela etant,´ l’impossibilité d’agir, a` laquelle renvoie l’article 2904 du Code civil du Québec, n’est pas limitée a` la crainte que peut eprouver´ la victime envers l’agresseur. 116 Dans les cas d’inceste41, le silence de la victime peut parfois s’expliquer par la crainte de briser la famille ou la crainte de la réaction des autres et le tabou entourant ces cas42. 117 Le juge Taschereau résume bien les principes enonc´´ es par la Cour suprême dans l’affaire Gauthier c. Beaumont43 relativement a` la crainte : [70] Cette crainte, qui prive la victime de son libre arbitre et ainsi de sa volonté d’agir en justice, ne peut etreˆ purement subjective. Pour etreˆ une cause d’impossibilité en fait d’agir, et de ce fait permettre la suspension de la prescription, cette crainte doit en effet porter sur un mal objectivement sérieux, exister durant toute la période d’impossibilité d’agir et etreˆ subjectivement déterminante quant a` celle-ci, c’est-à-dire subjectivement telle qu’il soit psychologique- ment, sinon physiquement, impossible pour la victime d’intenter un recours en justice.44 (Soulignements du Tribunal) 118 La Cour d’appel confirme d’ailleurs que pour que la crainte constitue une incapacité psychologique, elle doit remplir un double critère a` la fois subjectif et objectif : [63] (. . .) le tribunal doit, dans un premier temps, déterminer le caractère objectivement sérieux de la crainte. Dans un second temps, l’évaluation porte sur l’aspect subjectif, c’est-à-dire que la victime doit démontrer que la crainte etait´ déterminante tout au long de la période pendant laquelle l’impossibilité d’agir est invoquée. La

40 Gauthier c. Beaumont, préc., note 36. 41 Ici, même s’il ne s’agit pas d’inceste (Art. 155(1) du Code criminel canadien), il n’en demeure pas moins que les abus ont et´´ e commis par un oncle de la victime avec qui la famille entretenait des liens etroits.´ 42 L. LANGEVIN et N. DESROSIERS, L’impossibilité psychologique d’agir et les délais de prescription : lorsque le temps compte, 2007-2008, (2010), 42 R.J.T. 395 (S.C.C.), pages 403 et 404. 43 Gauthier c. Beaumont, préc., note 36. 44 P. (G.) c. Binet, 2007 QCCS 4027 (C.S. Que.). 156 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

crainte etait-elle´ de nature a` priver la victime de son libre arbitre et de la volonté d’ester en justice? La crainte doit egalement´ découler de la faute du défendeur. » [65] Cet arrêt [Gauthier c. Beaumont] apporte un assouplissement dans l’évaluation des circonstances qui entraˆınent une impossibilité d’agir et marque le passage d’une analyse purement objective vers un processus centré sur la victime et donc, par définition, plus subjectif. Autrement dit, la Cour suprême assouplit la notion en adoptant une analyse relative, fondée sur les circonstances particulières de chaque affaire. Cette ouverture ne signifie toutefois pas que l’impossibilité d’agir doit bénéficier d’une application illimitée. En effet, la suspension de la prescription demeure une exception et celui qui la soulève doit apporter une preuve convaincante pour l’appuyer. [...] [67] La jurisprudence subséquente a reconnu que d’autres motifs que la crainte peuvent justifier l’impossibilité psychologique d’agir. Le traumatisme psychologique qui rend la victime incapable d’établir un lien entre la faute et le préjudice qui en découle en est un bon exemple. Ce motif est habituellement invoqué dans des affaires d’abus sexuel ou d’inceste. [71] Cette décision [(Catudal c. Borduas (J.C. c. D.B.)] illustre le lourd fardeau dont doit s’acquitter celui qui allègue avoir et´´ e dans l’impossibilité psychologique d’agir. De plus, une chose demeure certaine, peu importe la source de l’impossibilité, elle doit avoir privé la victime de son libre arbitre, de sorte que celle-ci n’a pas volontairement renoncé a` l’exercice de son droit. »45 (Soulignements du Tribunal) 119 Ces principes etant´ etablis,´ il convient ici d’analyser si H... C... etait´ dans l’impossibilité d’agir avant le 13 décembre 2007, soit trois ans avant la date où il a intenté ses procédures judiciaires contre son oncle. 120 Ici, H... C... explique que c’est lorsque sa conjointe des sept a` huit dernières années l’a quitté, en octobre 2009, qu’il a réalisé l’ampleur des dommages qui lui ont et´´ e causés a` la suite des abus sexuels dont il a et´´ e victime. H... C... précise qu’à la suite de sa séparation, il a consulté Dani- elle Beaupré, psychothérapeute. La thérapeute l’a amené a` réaliser le préjudice subi et l’a aidé dans son cheminement.

45 Olivier c. Canada (Procureur g´en´eral), 2013 QCCA 70 (C.A. Que.). C. (H.) c. C. (V.) Dulude, J.C.S. 157

121 C’est alors qu’il a et´´ e en mesure de parler de ces ev´´ enements pour la première fois a` son beau-frère, puis a` sa sœur et finalement, a` ses parents. Ce sont d’ailleurs ses parents qui lui ont recommandé de porter plainte aux autorités policières contre V... CL... 122 Jusqu’alors, il dit avoir et´´ e prisonnier du silence imposé par son oncle de peur de détruire sa famille, sa tante et de ne pas etreˆ cru. 123 Au soutien de ses prétentions, il produit le rapport d’expertise du Dr. George-Henri Arenstein, psychologue46.

L’expertise en demande 124 En mars 2010, l’expert re¸coit le mandat de procéder a` une evaluation´ psychologique de la personnalité d’H... C... Les questions qui lui sont posées sont : 1. A` quel moment M. C...a-t-il réalisé qu’il subissait un préjudice suite aux agressions subies dans son enfance? 2. M. C...était-il dans l’impossibilité de prendre action avant ce jour? • Si oui, pourquoi? • Si non, depuis quand est-il apte? 3. M. C...a-t-il gardé des séquelles ou des troubles psychologiques de ces abus? 4. Quel a et´´ e l’élément déclencheur de sa poursuite? 5. M. C...vient-il tout juste de découvrir le lien entre ses troubles psychologiques et le mal qu’on lui a fait? 125 Pour effectuer son mandat, l’expert a rencontré H... C... a` trois reprises, pour un total d’un peu plus de cinq heures. Au cours de leurs rencontres, il administre plusieurs tests objectifs et projectifs, et il effec- tue des entrevues cliniques. 126 De plus, l’expert discute lors d’entretiens téléphoniques avec le père et le frère d’H... C..., son ex-conjointe et une amie très proche. 127 Au terme de son analyse, l’expert conclut a` la présence d’un « trouble de l’état de stress post traumatique, devenu chronique »47 : 8. Conclusion a. Conclusion générale

46 Pi`ece P-3. 47 Page 8 du rapport de l’expert en demande. 158 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

A` la lumière de tout ce qui précède, il est permis de conclure que M. C...souffre de trois troubles de la personnalité : dépendante, evitante´ et parano¨ıaque; de plus, on constate la présence de deux fortes composantes : anxieuse et dépressive. Son score a` l’Echelle´ de fonction- nement global (EFG)´ est inférieur a` 50% et la consommation excessive d’alcool et de café est toujours présente. Il y a lieu de mentionner aussi une immaturité dans le développement psychoaffectif ainsi qu’un trouble de l’état de stress post traumatique, devenu chronique. 128 Par ailleurs, l’expert précise : M. C...n’a jamais osé porter plainte avant octobre 2009. C’est dire combien grande etait´ sa panique de briser la famille ou de ne pas etreˆ cru, ou encore combien grande etait´ sa honte, son humiliation. Les observations cliniques et les recherches auprès de personnes victimes d’abus physiques et/ou sexuels démontrent qu’une fois que la tension intérieure devient trop forte ou que le secret devient trop lourd a` porter, la victime décide de passer a` l’action conformément a` ce qu’elle a voulu faire : dévoiler et poursuivre. Une analyse du contenu du récit de M. C..., de l’ensemble des tests, et du témoignage des tiers permettent au soussigné de déterminer, avec un taux de probabilité très elev´´ e, que la condition psychologique de M. C...est directement reliée aux abus qu’il a subis. 129 L’expert admet cependant qu’H... C... a réalisé, dès l’âge de neuf ans, qu’il subissait un préjudice lors des agressions subies. Toutefois, il explique que les enfants evitent´ « de dévoiler de tels abus par peur de représailles ou de menaces de catastrophe ou encore, parce qu’eux- mêmes se sentent responsables de ce qui est arrivé ». 130 H... C... etait,´ selon lui, dans l’impossibilité de prendre action au moment des ev´´ enements puisqu’il se trouvait dans un « etat´ d’immaturité, d’inertie, de découragement, de colère refoulée et d’impuissance ». 131 Finalement, l’expert affirme que les tests sont révélateurs d’un retard important dans le développement psychoaffectif. 132 Il conclut egalement´ a` un etat´ de stress post-traumatique chronique : Les tests administrés, ainsi que l’application des critères du DSM-IV, ne laissent a` peu près aucun doute sur la présence d’un trouble etat´ de stress post traumatique chronique. 133 Quant a` l’élément déclencheur qui a mis fin a` son impossibilité d’agir, l’expert dit qu’il y en a plusieurs, dont le fait d’en avoir parlé a` des proches. La rupture avec sa conjointe et l’arrêt de travail qui s’en est C. (H.) c. C. (V.) Dulude, J.C.S. 159

suivi ont egalement´ contribué a` augmenter la tension qui a alors atteint un seuil intolérable. 134 H... C... est devenu, selon l’expert, graduellement conscient du lien entre le mal qu’il a subi et ses troubles psychologiques. Il précise qu’H... C... etait´ paralysé par la peur et la culpabilité, comme d’ailleurs la vaste majorité des victimes d’abus sexuels. 135 Bref, H... C... soutient, expertise a` l’appui, qu’il etait´ dans l’impossibilité d’agir avant le mois d’octobre 2009 puisqu’il etait´ paralysé par la peur et la honte. C’est lors de sa séparation qu’il a pris conscience du lien réel entre ses problèmes et les abus dont il a et´´ e victime lorsqu’il etait´ enfant. Avant cette date, il etait,´ dit-il, incapable d’en parler et d’entreprendre des procédures. 136 Il affirme donc que son incapacité etait´ sérieuse et déterminante tout au long de la période antérieure a` 2009.

L’expertise en défense 137 A` l’opposé, V... CL... plaide qu’il n’était pas dans l’impossibilité d’agir au sens de la jurisprudence. Il affirme que même l’expert d’H... C... reconnaˆıt qu’il etait´ conscient dès l’âge de neuf ans du mal subi. 138 Pierre Gagné, psychiatre, expert pour le défendeur, a rencontré H... C... le 27 février 201248. 139 Ce dernier définit ainsi son mandat : Les questions a` répondre sont en rapport avec les dommages qu’aurait pu subir Monsieur C...consécutivement aux gestes sexuels allégués posés par Monsieur Cl...; les effets qu’aurait pu avoir a` long terme la consommation excessive de drogue et d’alcool par H... C... sur son jugement, sa mémoire et sa qualité de témoignage; l’incapacité qu’aurait pu avoir H... C... d’intenter un recours durant la période où les abus ont eu lieu et durant les années qui ont suivi. (Soulignements du Tribunal) 140 Après avoir résumé les ev´´ enements et les faits tels qu’ils lui sont re- latés par H... C..., l’expert conclut : Par ailleurs, mon impression d’après ce qu’il m’a raconté est que sa connaissance de ce qui s’était passé avec son oncle a toujours et´´ e présente a` son esprit ainsi que le lien possible de cause a` effet entre

48 Pi`ece D-1. 160 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

les abus sexuels et les difficultés qu’il a rencontrées dans sa viea ` plusieurs niveaux, tel que mentionné plus haut dans mon rapport. En ce qui regarde l’incapacité d’intenter un recours, j’estime qu’il s’agissait d’une décision de sa part qui tenait compte de son refus d’en parler a` sa famille, craignant que cela ait sur eux un effet dévas- tateur. Les el´´ ements dépressifs qui ont et´´ e présents dans sa vie, comme lui-même le mentionne, n’étaient pas selon moi de sévérité telle qu’il aurait et´´ e empêché pour cela d’agir au niveau d’une dé- marche judiciaire a` entreprendre. On notera que durant les années qui ont suivi les abus sexuels, il a et´´ e capable de poursuivre des etudes,´ de travailler, d’entreprendre des relations avec des femmes, de fonder une famille et de s’occuper adéquatement de ses enfants. (Soulignements du Tribunal) 141 A` l’audience, l’expert Gagné précise a` plusieurs reprises qu’au moment où il rencontre H... C..., il ne semble pas avoir d’atteinte, telle que diagnostiquée par l’expert Arenstein. Lorsqu’il le voit, il fonctionne bien, dit-il. Il admet toutefois que H... C... peut avoir présenté le type de trouble noté par l’expert Arenstein a` un autre moment de sa vie49. 142 Pour les motifs qui suivent, le Tribunal retient la version d’H... C... et l’opinion de son expert. 143 Premièrement, le Tribunal a et´´ e en mesure d’apprécier le caractère objectivement sérieux de la crainte qu’a ressentie H... C... pendant plusieurs années. 144 La famille de sa mère est très proche. Les liens qui unissent les deux sœurs et le frère sont particulièrement etroits.´ Ro..., la mère d’H.C., et N..., la femme de V... CL..., ont une belle complicité et elles sont de très grandes amies. Elles se parlent presque quotidiennement. Le témoignage de N... a` cet egard´ est touchant. Elle eprouve´ aujourd’hui une peine profonde. Elle est déchirée entre son mari et sa sœur. Jamais, dit-elle, elle n’aurait voulu de mal a` sa sœur ou a` ses enfants. La crainte de briser ce lien et de détruire la famille a` laquelle réfère H... C... etait´ totalement fondée objectivement. 145 Quant a` V... CL... il ne s’agit pas d’un oncle eloign´´ e. Les deux familles se sont toujours fréquentées sur une base régulière et ce, jusqu’à ce qu’H... C... dénonce les abus dont il a et´´ e victime. D’ailleurs, les effets

49 Il est a` noter que l’expert Gagn´e rencontre H. C. en 2012 alors que l’expert Arenstein le rencontre en 2010. C. (H.) c. C. (V.) Dulude, J.C.S. 161

de cette dénonciation, dont le Tribunal traitera ultérieurement, en disent long sur le sérieux de cette crainte. 146 Deuxièmement, quant a` l’aspect subjectif de la crainte, le témoignage du psychologue Arenstein est fort convaincant. Contrairement au psychiatre Gagné, l’expert d’H... C... a procédé a` une analyse détaillée, exhaustive et complète. Il a administré a` monsieur C...plusieurs tests et l’a rencontré a` trois reprises avant de conclure comme il l’a fait. 147 La preuve administrée a` procès démontre clairement la présence d’une crainte objective et subjective déterminante qui s’est poursuivie jusqu’à la séparation d’H... C... en octobre 2009 et sa consultation avec la psychothérapeute, Danielle Beaupré50. 148 A` cet egard,´ l’expert Arenstein conclut que c’est l’état d’immaturité, d’inertie, de découragement, de colère refoulée et d’impuissance qui ont empêché H... C... d’entreprendre des procédures avant décembre 2010. 149 A` procès, tant H... C... que son expert expliquent de fa¸con convaincante que cette crainte de briser la famille et de ne pas etreˆ cru etait´ bien présente. La preuve prépondérante démontre l’état du demandeur tout au cours de la période pendant laquelle l’impossibilité d’agir est invoquée. 150 Qu’H... C... n’ait pas eu nécessairement peur de son oncle pendant toutes ces années, qu’il ait et´´ e en mesure d’avoir une relation de couple pendant près de sept ans, de fonder une famille et d’occuper un métier de soudeur a` temps plein jusqu’à sa séparation ne sont pas des indices d’une absence de crainte déterminante fondant une capacité d’agir. L’impossibilité d’agir ne requiert pas la preuve d’une dysfonction totale a` tous les egards.´ 151 Rappelons que plusieurs raisons peuvent empêcher une victime d’introduire un recours devant une cour de justice sans qu’elle eprouve´ nécessairement une crainte de son agresseur. Cela est particulièrement vrai pour une victime d’agression sexuelle : [65] Entreprendre des procédures judiciaires est ordinairement une décision exigeante pour la plupart des gens non rompus a` la science juridique.

50 Quoique la psychothérapeute Danielle Beaupré n’ait pas témoigné a` procès, la preuve permet de conclure qu’il a suivi des traitements de psychothérapie avec Danielle Beaupré, ce qui l’a amené a` réaliser réellement le lien entre le préjudice subi et les agressions dont il a et´´ e victime. 162 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

[66] Cette entreprise est impossible pour une personne dévalorisée, atteinte d’un sentiment d’impuissance et envahie par la honte.51 152 Ici, comme pour plusieurs victimes d’abus sexuel, il etait´ pour H... C... très difficile, voir impossible, de mettre en péril la relation si précieuse entre sa mère et sa sœur et entre leurs familles respectives. Même s’il est conscient depuis longtemps que les gestes commis par son oncle sont répréhensibles, il portait ce secret comme un fardeau. Les abus ont fa¸conné sa personnalité. Toutes ces années, il a consommé pour oublier. Il doit surmonter des symptômes de dépression constants. Il est fragile et cela affaiblit sa capacité de dénoncer. 153 Clairement, H.C. eprouvait´ une crainte déterminante de causer un mal sérieux en révélant les abus commis par son oncle. Même s’il est conscient de ce qu’il a subi, il etait´ incapable de parler des ev´´ enements. Comme le précise son expert, dénoncer etait´ pour H... C... a` la limite de « l’insurmontable ». Il lui etait´ donc impossible, en fait, de poursuivre. 154 Bref, il ne s’agit pas là d’un choix véritable, comme le prétendent V... CL... et son expert. 155 H... C... n’avait tout simplement pas la capacité d’agir au sens du Code civil du Québec. 156 De l’avis du Tribunal, ce n’est que lors de sa séparation et a` la suite de sa rencontre avec la psychothérapeute qu’il a et´´ e en mesure de parler pour la première fois de ces agressions, puis avec le support des ses parents, il a et´´ e capable d’entreprendre les procédures. 157 Ce n’est qu’à ce moment qu’il a réellement fait le lien entre les abus et sa vie malheureuse. 158 L’état d’impossibilité d’agir a donc pris fin en 2009. Son recours in- tenté le 13 décembre 2010 n’est donc pas prescrit.

C) Quels sont les dommages subis par H... C... ? 159 H... C... réclame : i. 200 000 $ a` titre de dommages moraux, psychologiques et physiques et pour atteinte illicite a` la dignité et a` l’intégrité de sa personne; et, ii. 35 000 $ a` titre de dommages punitifs.

51 H. (L.) c. G. (L.), 2008 QCCS 4646 (C.S. Que.). C. (H.) c. C. (V.) Dulude, J.C.S. 163

i. Les dommages moraux, psychologiques et physiques et l’atteinte illicite a` la dignité et a` l’intégrité de sa personne 160 La Cour suprême enseigne que trois approches, soit conceptuelle, personnelle et fonctionnelle permettent d’établir l’indemnité pour les dommages moraux52. 161 L’approche conceptuelle considère une evaluation´ purement objective basée sur le type de blessure, sans tenir compte de la situation personnelle de la victime. 162 L’approche fonctionnelle d’évaluation des dommages moraux vise, pour sa part, a` fournir a` la victime une consolation raisonnable pour compenser ses malheurs53. 163 Finalement, l’approche personnelle, quant a` elle, a pour but d’octroyer a` la victime une indemnité qui correspond spécifiquement a` la douleur et les inconvénients qui découlent des blessures qu’elle a subies54. 164 La Cour suprême souligne que ces trois méthodes « interagissent, laissant une marge de manœuvre aux tribunaux pour en arriver a` un résultat raisonnable et equitable´ »55 : Ainsi, en droit civil québécois, les trois méthodes de calcul du montant nécessaire pour compenser le préjudice moral [...] s’appliquent conjointement, favorisant ainsi l’évaluation personnal- isée du préjudice moral. De fait, ceci m’apparaˆıt la meilleure solution dans un domaine où la quantification exacte du préjudice subi, en raison de son caractère qualitatif, est extrêmement difficile. (soulignements du Tribunal) 165 Enfin, il est possible aussi de comparer les indemnités accordées au cours des dernières années pour ce type de dommage. D’ailleurs, plusieurs juges se sont prêtés a` cet exercice récemment56.

52 Gauthier c. Beaumont, préc., note 36. 53 Lindal v. Lindal (No. 2), [1981] 2 S.C.R. 629 (S.C.C.) et 636. 54 Daniel GARDNER, Le préjudice corporel, 3e Edition,´ Cowansville, Les Edi-´ tions Yvon Blais, 2009, p. 392. 55 Gauthier c. Beaumont, préc., note 36. 56 L. (P.) c. L. (J.), 2011 QCCA 1233 (C.A. Que.); L. (D.) c. La. (R.) (Succes- sion), 2010 QCCS 2077 (C.S. Que.); K. (J.) c. D. (S.), EYB 2009-158619 (C.S. Que.). 164 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

166 En somme, une revue jurisprudentielle des cas d’abus sexuel au Qué- bec démontre que les indemnités octroyées pour dommages moraux varient entre 30 000 $ et 200 000 $, selon la gravité des agressions, la récurrence de celles-ci, les séquelles subies par les différentes victimes et les circonstances particulières de chaque cas57. 167 Cela etant,´ comme le précise la Cour d’appel58, l’exercice de comparer la situation d’une victime d’abus avec celle d’une autre victime indemnisée par les tribunaux est très délicat. Il serait inapproprié d’envisager une indemnité type selon un barème dans les cas d’abus. Chaque victime a son bagage, chacun réagit de fa¸con bien différente. Comparer les souffrances et les douleurs des victimes d’abus sexuel peut s’avérer fort complexe. 168 Bref, il est très difficile, en matière d’agression sexuelle, d’établir un montant de dommages qui puisse indemniser une victime pour toutes les souffrances vécues en raison des agressions subies59. 169 Ici, l’expert Arenstein n’évalue pas l’incapacité partielle permanente qui découle des abus dont H... C... a et´´ e victime. 170 Quant aux séquelles, l’expert ecrit:´ M. C...souffre de trois troubles de la personnalité : dépendante, evi-´ tante et parano¨ıaque; de plus, on constate la présence de deux fortes composantes : anxieuse et dépressive. Son score a` l’Echelle´ de fonc- tionnement global (EFG)´ est inférieur a` 50% et la consommation excessive d’alcool et de café est toujours présente. Il y a lieu de mentionner aussi une immaturité dans le développement psychoaffectif ainsi qu’un trouble de l’état de stress post traumatique, devenu chronique. 171 Il ajoute : Une analyse du contenu du récit de M. C..., de l’ensemble des tests, et du témoignage des tiers permettent au soussigné de déterminer,

57 A` titre d’exemple, les montants octroyés par les tribunaux sont plus importants si la victime est devenue enceinte a` la suite d’abus ou si les agressions se sont déroulées de fa¸con récurrente (voir quotidienne, hebdomadaire ou men- suelle) ou sur une longue période. 58 L. (P.) c. L. (J.), préc., note 56; A. (M.) v. Stations de la Vallée de St-Sauveur inc., 2010 QCCA 1509 (C.A. Que.). 59 L. (P.) c. L. (J.), préc., note 56; Tremblay c. Lavoie, 2014 QCCS 3185 (C.S. Que.). C. (H.) c. C. (V.) Dulude, J.C.S. 165

avec un taux de probabilité très elev´´ e, que la condition psychologique de M. C...est directement reliée aux abus qu’il a subis. 172 Ainsi, l’expert fait un lien entre les abus et la vie malheureuse d’H... C... 173 Il conclut qu’H... C... a gardé des séquelles et des troubles psychologiques de ces abus. 174 Pour sa part, l’expert en défense conclut : Opinion médico-légale En réponse aux questions que vous me posez, s’il etait´ avéré que Monsieur C...a subi les abus sexuels dont il m’a parlé, il serait vraisemblable que les troubles de comportements présent a` l’adolescence, la consommation de substances, des difficultés a` con- trôler sa colère a` l’occasion, des idées suicidaires et des troubles er-´ ectiles auraient pu avoir et´´ e consécutifs a` de tels abus. Monsieur C...établit egalement´ qu’il consommait pour tenter d’oublier ce qui s’était passé avec son oncle. (Soulignements du Tribunal) 175 Le Tribunal doit donc evaluer´ le montant d’une indemnité juste et raisonnable dans les circonstances. 176 Ici, il est evident´ qu’H... C... a subi des séquelles a` long terme qui se manifestent par un sentiment de honte, un manque de confiance et d’estime de lui-même, une méfiance généralisée et une incapacité de communiquer, le tout découlant des agressions sexuelles dont il a et´´ e victime. 177 Sa réclamation se limite a` des dommages non pécuniaires. Aucune preuve n’est administrée sur une perte de revenus ou des coûts pour des soins passés ou futurs. 178 Les agressions dont H... C... a et´´ e victime entre l’âge de 9 et 17 ans l’ont de toute evidence´ marqué a` vie. H... C... a, de l’âge de 13 ans a` 33 ans, consommé pour s’évader et oublier. Il est incapable de développer des relations interpersonnelles et son intimité avec sa conjointe en a et´´ e affectée. La preuve démontre de fa¸con prépondérante que la condition psychologique d’H... C... est liée aux agressions dont il a et´´ e victime. 179 Par ailleurs, la preuve etablit´ qu’H... C... a subi de grandes souffrances, tant physiques que morales. Il a vécu avec la honte qui l’habitait constamment. Il se sentait coupable et responsable de ce qui lui est ar- rivé. Tout ce temps, il ne voulait en parler de peur de briser sa famille. Son estime personnelle a et´´ e grandement affectée. 166 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

180 Les agressions sexuelles ont eu un effet indéniable sur la vie d’H... C... Sa personnalité s’est modifiée a` la suite des agressions. Il est devenu taciturne, angoissé, renfermé, colérique et peu souriant. Pendant plusieurs années, il a souffert d’alcoolisme et de toxicomanie. 181 H... C... a, de toute evidence,´ subi une sévère perte d’agrément de la vie. Il souffre toujours d’angoisse et d’anxiété elev´´ ee. Son humeur est changeante, il est irritable. Il eprouve´ beaucoup de difficulté a` ressentir du plaisir et ce, peu importe la situation. 182 D’ailleurs, son expert confirme que, tout au cours de sa vie H... C... a présenté une symptomatologie dépressive et traumatique qui s’est manifestée par une perte d’intérêt et de motivation et ce, pour toute activ- ité qu’elle soit personnelle ou professionnelle. 183 Aujourd’hui, il est incapable de se départir de son sentiment de culpabilité. A` l’audience, ce sentiment est d’ailleurs perceptible. 184 H... C... doute constamment de sa valeur personnelle. Il se sent facile- ment inférieur. Il est méfiant et distant dans ses relations interpersonnelles. Malgré son amour indéniable pour sa conjointe avec laquelle il a eu deux enfants, il a et´´ e incapable d’établir ou de construire une véritable relation intime. Il ne peut voir le beau côté de la vie et il est incapable de ressentir de la joie dans des situations heureuses. Il a l’impression d’être un fardeau pour les autres. Il est constamment fatigué et il manque d’énergie. 185 Malgré une evolution´ positive a` la suite de la thérapie, il est indéni- able qu’H... C... souffre toujours des conséquences des agressions sexuelles dont il a et´´ e victime. 186 Bien qu’aucune somme d’argent ne puisse véritablement réparer le préjudice subi par H.C., le Tribunal considère juste et approprié d’accorder une somme de 125 000 $ pour ses dommages moraux, psychologiques et physiques et pour l’atteinte illicite a` la dignité et a` l’intégrité de sa personne.

ii. Les dommages punitifs 187 H... C... réclame, conformément a` l’article 49 de la Charte des droits et libertés de la personne, une somme de 35 000 $ pour les dommages punitifs. C. (H.) c. C. (V.) Dulude, J.C.S. 167

188 En ce qui concerne les dommages punitifs, l’article 1621 du Code civil du Québec prévoit : 1621. Lorsque la loi prévoit l’attribution de dommages-intérêts punitifs, ceux-ci ne peuvent excéder, en valeur, ce qui est suffisant pour assurer leur fonction préventive. Ils s’apprécient en tenant compte de toutes les circonstances ap- propriées, notamment de la gravité de la faute du débiteur, de sa situation patrimoniale ou de l’étendue de la réparation a` laquelle il est déjà tenu envers le créancier, ainsi que, le cas ech´´ eant, du fait que la prise en charge du paiement réparateur est, en tout ou en partie, as- sumée par un tiers. 189 L’attribution de dommages punitifs vise l’atteinte de trois objectifs sociaux, soit la dénonciation des actes répréhensibles, la dissuasion de commettre ces actes et le besoin de les punir60. 190 Il ne fait aucun doute, ici, qu’H... C... peut réclamer des dommages exemplaires puisque V... CL... est l’auteur d’une atteinte illicite et intentionnelle aux droits, a` l’intégrité et a` la dignité de la personne reconnue a` l’article 49 de la Charte québécoise des droits et libertés de la personne. 49. Une atteinte illicite a` un droit ou a` une liberté reconnu par la présente Charte confère a` la victime le droit d’obtenir la cessation de cette atteinte et la réparation du préjudice moral ou matériel qui en résulte. En cas d’atteinte illicite et intentionnelle, le tribunal peut en outre condamner son auteur a` des dommages-intérêts punitifs. 191 Ici, les agressions ont commencé alors qu’H... C... etait´ ag´ˆ e de neuf ans. A` cette epoque,´ V... CL... etait´ en situation d’autorité face a` H... C... 192 Il y a eu quatre ev´´ enements lors desquels H.C. a et´´ e agressé au cours de huit ans. Pendant toute son adolescence, H... C... a vécu avec son traumatisme, son secret et la honte qui l’habitait. Comme mentionné, H.C. a et´´ e et il est toujours affecté. 193 Le fait, dans ce cas-ci, que l’agresseur soit un membre de la famille d’H... C... en qui il avait toute confiance contribue au caractère répréhen- sible de la conduite de V... CL... 194 Nul doute que V... CL... a porté sérieusement atteinte a` l’intégrité de sa personne protégée par la Charte.

60 De Montigny c. Brossard (Succession), [2010] 3 S.C.R. 64 (S.C.C.); Tremblay c. Lavoie, 2014 QCCS 3185 (C.S. Que.). 168 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

195 Finalement, quant a` la situation patrimoniale de V... CL..., la preuve administrée démontre qu’il a travaillé pour une compagnie d’assurances et qu’il a eu une vie confortable61. Présentement, il est retraité et il est toujours propriétaire de la résidence familiale et d’un petit camp de chasse. 196 Considérant la gravité des atteintes illicites et intentionnelles com- mises, le Tribunal fixe les dommages exemplaires a` 25 000 $.

POUR CES MOTIFS, LE TRIBUNAL : 197 ACCUEILLE la requête du demandeur; 198 CONDAMNE le défendeur a` payer 150 000 $ avec intérêts et l’indemnité additionnelle prévue au Code civil du Québec depuis l’assignation; 199 LE TOUT avec les frais de justice, incluant les frais d’experts. Action accueillie.

61 Il etait´ responsable d’un bureau d’experts en sinistres. Il etait´ propri´etaire d’un avion. P. (T.) v. B. 169

[Indexed as: P. (T.) v. B.] T.P., Plaintiff and Dr. B., Defendant Alberta Court of Queen’s Bench Docket: Calgary 1201-10685 2016 ABQB 158 Master J.T. Prowse, In Chambers Heard: March 8, 2016 Judgment: March 16, 2016 Health law –––– Provincial matters — Regulation of health professionals — Physicians — Discipline by College of Physicians and Surgeons — Unpro- fessional conduct — Miscellaneous –––– Defendant doctor interviewed plaintiff’s 13-year-old daughter at behest of her father but without knowledge or consent of her mother, plaintiff, notwithstanding that plaintiff was her guardian with sole legal authority to give or withhold consent — Doctor then prepared report recommending that daughter’s primary caregiver be her father — Report was used by father in attempt to obtain custody of daughter — Ultimately, following bilateral assessment reported ordered by court, plaintiff consented to order im- plementing doctor’s change, namely that father have primary care of daughter — Plaintiff alleged that without doctor’s unauthorized report, father may not have been able to persuade court to order bilateral assessment report, and consequently may not have been able to obtain primary custody of daughter — Doctor was disciplined by his professional association for unprofessional conduct — Plaintiff commenced action for damages to compensate her for legal expenses incurred in custody dispute as well as emotional trauma resulting from contested custody proceedings — Doctor brought application for summary dismissal of plaintiff’s claim — Application granted — Cause of action for damages did not arise simply because doctor acted in way which resulted in sanction against him by professional association — Minor difference between case in hand and established case law was not sufficient to trigger different outcome in law — There was no evidence that doctor was careless in preparation of report or motivated by mailce. Cases considered by Master J.T. Prowse, In Chambers: Hryniak v. Mauldin (2014), 2014 CarswellOnt 640, 2014 CarswellOnt 641, 37 R.P.R. (5th) 1, [2014] S.C.J. No. 7, 46 C.P.C. (7th) 217, 27 C.L.R. (4th) 1, (sub nom. Hryniak v. Mauldin) 366 D.L.R. (4th) 641, 2014 CSC 7, 453 N.R. 51, 12 C.C.E.L. (4th) 1, 314 O.A.C. 1, 95 E.T.R. (3d) 1, 21 B.L.R. (5th) 248, [2014] 1 S.C.R. 87, [2014] A.C.S. No. 7, 2014 SCC 7 (S.C.C.) — followed 170 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

N. (M.) v. Froberg (2009), 2009 ABQB 145, 2009 CarswellAlta 362, 67 C.C.L.T. (3d) 152, 11 Alta. L.R. (5th) 117, [2009] 11 W.W.R. 518, [2009] A.J. No. 253, 468 A.R. 33 (Alta. Q.B.) — followed Whitecourt Power Limited Partnership v. Elliott Turbomachinery Canada Inc. (2015), 2015 ABCA 252, 2015 CarswellAlta 1379, 389 D.L.R. (4th) 111, 74 C.P.C. (7th) 227, 21 Alta. L.R. (6th) 283 (Alta. C.A.) — considered Rules considered: Alberta Rules of Court, Alta. Reg. 124/2010 R. 7.3 — considered

APPLICATION by doctor for summary dismissal of plaintiff’s claim for damages.

Peter G. Nieswandt, for Plaintiff Eugene J. Bodnar, for Defendant

Master J.T. Prowse, In Chambers:

1 The defendant Dr. B was disciplined by his professional association for unprofessional conduct. The question is whether he is also liable for damages to the plaintiff T.P. 2 Dr. B interviewed T.P.’s 13 year old daughter at the behest of her father but without the knowledge or consent of her mother T.P., notwithstanding that T.P. was her guardian with the sole legal authority to give or withhold consent. 3 Dr. B then prepared a report recommending that T.P.’s primary caregiver be her father. This report was used by the girl’s father in an attempt to obtain custody of the daughter. In the end, and following a bilateral assessment report ordered by the court, T.P. consented to an order implimenting the change that Dr. B had recommended in his report, namely, that the father have primary care of the daughter. 4 T.P. complains that, without Dr. B’s unauthorized report, the father may not have been able to persuade the court to order a bilateral assessment report, and the father may never have been able to obtain primary custody of the daughter. She brings this action for damages to compensate her for legal expenses incurred in the custody dispute as well as emotional trauma resulting from the contested custody proceedings. Dr. B has applied for summary dismissal of the claim. P. (T.) v. B. Master J.T. Prowse 171

5 Dr. B. admitted to unprofessional conduct before the College of Al- berta Psychologists, which made the following findings concerning Dr. B: (i) he provided psychological services to the 13 year old daughter without taking any steps to obtain court documentation which could inform the analysis of which party was authorized to provide informed consent on behalf of the daughter. (ii) he failed to sufficiently document the informed consent process ... particulars of which include failure to sufficiently document one or more of the following: a. the purpose and nature of his professional services, b. likely benefits and risks, c. likely consequences of non-action, d. the option to refuse services or withdraw at any time, and e. how to rescind consent if desired. (iii) he inappropriately undertook his own child protection investigation. (iv) he rendered a professional opinion regarding the daughter’s custody and/or access arrangements without any professional contact with her mother, particulars of which include: a. advising the father’s lawyer that he supported the daughter changing her residence to live with her father in another province where the father lived, and b. recommending to the father’s lawyer that the daughter’s visits with her mother be supervised and monitored. (v) he inappropriately delayed reporting his child protection concerns for 3 days until after he had provided his professional opinion to the father’s lawyer concerning custody and/or access. 6 T.P.’s claim against Dr. B alleges that as a result of the issuance of his report: (i) Family court proceedings ensued in which she incurred numerous unnecessary expenses, including legal fees and fees for psychologist reports. (ii) She suffered pain, emotional distress, anxiety and other medical ailments. 172 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

(iii) She incurred costs for her own resulting medical ailments and stress. 7 Dr. B seeks summary dismissal of T.P.’s claim pursuant to Rule 7.3 of the Alberta Rules of Court. He cites in support of his application the leading Supreme Court of Canada decision in Hryniak v. Mauldin, [2014] 1 S.C.R. 87 (S.C.C.). 8 Dr. B’s position is that the facts in this case and the law to be applied are sufficiently established that this Court can determine the matter summarily. The onus of proof which Dr. B. must achieve in order to obtain summary dismissal was recently described by the Court of Appeal in Whitecourt Power Limited Partnership v. Elliott Turbomachinery Canada Inc., 2015 CarswellAlta 1379, 2015 ABCA 252 (Alta. C.A.) as follows: In light of the Supreme Court’s decision in Hryniak v Mauldin, 2014 SCC 8, [2014] 1 S.C.R. 87 and decisions of this court since Hryniak, summary judgment is no longer denied solely on the basis that the evidence discloses a triable issue. Rather, the court asks whether there is any issue of merit that genuinely requires a trial or, con- versely, whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily. A second consideration is whether examination of the existing record can lead to an adjudication and disposition that is fair and just to both parties. See generally W.P. v. Alberta, 2014 ABCA 404at para 26, 7 Alta LR (6th) 319; Windsor v. CPR, 2014 ABCA 108at para 16, 572 AR 317.

Breach of the code of conduct of a professional association 9 A cause of action for damages does not arise simply because Dr. B. has acted in a way which has resulted in a sanction against him by his professional association. 10 This is confirmed in the decision of N. (M.) v. Froberg, 2009 ABQB 145 (Alta. Q.B.) where the plaintiff, the father of two children, sued the defendant psychologist for damages arising from reports prepared by the defendant psychologist at the request of the mother. 11 The defendant had been found guilty by her professional association of failing to meet minimum professional standards, and in particular, failing to comply with section 6 of the Alberta Psychologists Code of Con- duct which provided that: Psychologists rendering a formal professional opinion about a person that has implications for that person’s legal or civil rights (for exam- P. (T.) v. B. Master J.T. Prowse 173

ple, about the fitness of a person in a custody hearing) shall not do so without direct and substantial professional contact with or a formal assessment of that person. 12 Notwithstanding this breach of the Code of Conduct, the father’s suit for damages against the defendant psychologist was dismissed because: (i) There was no duty of care in negligence owed to the plaintiff, (ii) There was no fiduciary duty of care owed to the plaintiff, and, (iii) The defendant was entitled to witness immunity

Attempts to distinguish the decision in N. (M) v. Froberg 13 The only difference between the situation in Froberg and the situation here is that, in Froberg, the defendant psychologist had started out treating the two children of the plaintiff. It was only later when the plaintiff father applied for custody that the defendant psychologist was asked, by the mother, to prepare reports for use in the custody proceedings. In the present case, Dr. B was retained from the outset to prepare a report for use in anticipated custody proceedings. 14 This minor difference in facts is not sufficient to trigger a different outcome in law. 15 In the context of considering witness immunity, the Court in Froberg emphasized that the relevant aspect of the case before it was, as in the case before me, the liability of a psychologist arising from the preparation of a report as the request of the other spouse for use in custody proceedings. The Court stated as follows: 49 This situation is somewhat unique because although the Defen- dant appears to have the qualifications to attend in Court as an expert witness, she was not originally retained in that capacity, and did not appear to anticipate that her involvement may become necessary in possible proceedings. Because of the Plaintiff’s initiation of access proceedings and the mother’s desire to respond to them through the use of the Defendant’s experience with the children, the Defendant was drawn into the litigation process. 50 The Plaintiff’s argument is that since the Defendant was retained in the context described above, witness immunity does not apply to the reports which she authored and provided to the mother’s counsel for use in the Plaintiff’s application. It is the issuance of these reports for known use in Court proceedings which is argued to trigger the Defendant’s liability. (emphasis added) 174 CANADIAN CASES ON THE LAW OF TORTS 28 C.C.L.T. (4th)

16 In Froberg, as in the case before me, the custody proceedings resulted in a court ordered bilateral assessment which came to the same conclusion, so far as custody is concerned, as the report initially prepared by the defendant psychologist. There was no evidence in either Froberg or in this case that the defendant psychologist was careless in the preparation of their report or motivated by malice.

Conclusion 17 I agree with the reasoning and outcome in Froberg and I am bound by it. As a result, I allow the application by Dr.B to have the proceedings against him summarily dismissed. Costs may be spoken to. Application granted.