Judgment released in BC (AG) v ICBC

The Supeme Court of Canada (“SCC”) released its judgment this morning in the case of Attorney General of British Columbia v Insurance Corporation of British Columbia, [2008] 1 SCR 21. LeBel J., writing for a unanimous Court, determined that where joint and several liability for damages in tort is assigned to two or more parties, any party who is vicariously liable for the damages is also responsible jointly and severally.

The facts of the case are sad. Brenda Hohn was killed when she was struck by a stolen car driven by T.B., then fourteen years old. At the time that he struck Ms. Hohn, T.B. was being pursed by Constable McBryan of the RCMP. Ms. Hohn’s family brought an action for compensation under the Family Compensation Act, RSBC 1996, c 126. At summary trial it was determined that T.B. was 90% at fault for the death and that Constable McBryan was 10% at fault.

Section 21 of the Police Act, RBSC 1996, c 367, provides that no action for damages lies against a police officer for negligence in the performance of his duty, and s. 11(1) provides that the Attorney General of British Columbia is “jointly and severally liable for torts committed by provincial constables” in the performance of their duties. The Attorney General was therefore vicariously liable for the fault of Constable McBryan.

T.B. was an uninsured driver, and the issue thus became who would pay the damages. The Insurance Corporation of British Columbia (“ICBC”) declined to pay any of the judgment. The A.G. argued that, despite the fact that Constable McBryan had been found jointly and severally liable for the damages owed to the family of Ms. Hohn, its liability should be limited to the proportion of the damages attributed to the fault of Constable McBryan (i.e. 10%).

The judgments of the Supreme Court of British Columbia and the Court of Appeal of British Columbia addressed this issue, in addition to other questions relating to ICBC’s liability. At the SCC, the issue was limited to the question of whether the Attorney General was jointly and severally liable for the damages. Both the lower court and the appellate court held that the Attorney General was jointly and severally liable, and the SCC upheld this part of the decision.

LeBel J. held that Levine J.A. of the British Columbia Court of Appeal had correctly defined the scope and effect of vicarious liability imposed on the Attorney General The Attorney General.’s liability was the same as would have been imposed upon Constable McBryan, if the operation of s. 21 of the Police Act had not relieved him of liability. Section 11 of the same act protects the victim; the family of Ms. Hohn retained all the same rights it had against Constable McBryan, but against a different debtor.

Note: Prior to the case reaching the SCC, the family of Ms. Hohn received full payment from the Attorney General, and assigned its rights to the Attorney General. Legal proceedings between the Attorney General. and ICBC are ongoing in the BC courts.