



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



British Columbia/Yukon Association of Drug War
  Survivors v. Abbotsford Police Department,









2015 BCCA 97




Date: 20150128

Docket: CA042419

Between:

British
Columbia/Yukon Association of Drug War Survivors

Appellant

(Plaintiff)

And

Abbotsford Police
Department

Respondent

And

City
of Abbotsford

Respondent

(Defendant)




Before:



The Honourable Madam Justice Garson

(In Chambers)




On appeal from: an
order of the Supreme Court of British Columbia dated
September 29, 2014 (
B.C./Yukon Association of Drug War Survivors v.
Abbotsford (City)
, 2014 BCSC 1817, New Westminster Docket No. S159480

Oral Reasons for Judgment




Counsel for the Appellant:



D.K. Wotherspoon
D.J. Larkin





Counsel for the Respondent:



D.G. Butcher, Q.C.





Counsel for the City of Abbotsford:



J. Yardley





Counsel for the Attorney General of British Columbia



S.E. Lacusta





Place and Date of Hearing:



Vancouver, British
  Columbia

January 27, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 28, 2015




Summary:

The applicant sought leave
to appeal an order for costs in any event of the cause flowing from an
application for third-party disclosure in the Supreme Court of British
Columbia.

The applicant is a non-profit organization engaged in public
interest litigation on behalf of drug-addicts. In the court below, the
applicants successfully applied for third-party disclosure from the Abbotsford
Police Department, but were ordered to pay the costs for such disclosure in any
event of the cause. Held: leave granted. The applicant seeks relief pursuant to
actions of the Abbotsford Police Department, but cannot sue the Abbotsford
Police Department as a co-defendant because it is not a legal entity. There is
some merit in the argument that the Abbotsford Police Department should not be
treated the same as a typical third-party in these circumstances. The
applicant may not be able to obtain the necessary disclosure if it is required
to pay the costs in any event of the cause due to its financial status as a
non-profit. Only the possible delay of the underlying action weighs against
granting leave, but this does not outweigh the interest that the applicant and
the legal profession has in resolving this issue.

Overview

[1]

GARSON J.A.
:  This is an application for leave to appeal an order
of the Chief Justice of the Supreme Court of British Columbia in which he
ordered that the British Columbia/Yukon Association of Drug War Survivors,
(the Association), the Plaintiff in the underlying action and appellant on this
appeal, pay the cost of production of certain records of the Abbotsford Police
Department (the APD). The APD is not a party to the litigation in the Supreme
Court. The
Police Act
, R.S.B.C. 1996, c. 367 provides that the City is
jointly and severally liable for a tort committed by a police officer in the
course of his duties. Thus, in this lawsuit, the City of Abbotsford is sued for
its own alleged wrongs and also those of the APD.

[2]

The issue that brings the matter before this Court on an application for
leave to appeal is the costs order associated with the application of the
Association for production of APD documents. Because APD was considered by the
chambers judge to be a third party, he ordered the Association to pay costs for
production of the documents. I am told by counsel on this application for leave
that the costs are as yet not calculated but are expected to be anywhere
between $20,000 and $50,000.

[3]

The Association is represented by counsel on a
pro bono
basis. The
Association cannot afford to pay costs for producing the documents. It argues
that the City of Abbotsford should bear its own costs for producing the
documents in this public interest litigation concerning issues of
homelessness. On the application for leave, the Association argues that the
issues raised on appeal merit the granting of leave.

Background

[4]

The Association, founded in 2009, is made up of
former and current drug users, with a mission to improve the lives of drug
addicts, through the use of peer support, education, and lobbying for policy
and social changes. The Association has most recently been funded primarily
through a $7,000 grant from the Fraser Health Authority.

[5]

In March 2014, the Association commenced this
action against the City of Abbotsford, including the APD, alleging various
Charter
breaches including, for example, that the bylaws of the City of Abbotsford
and certain actions of the APD interfere with,
inter alia
, the s. 7
Charter
rights of the Associations members. In a portion of its Notice of Civil
Claim that is pertinent to the APD, it is alleged:

16.       Abbotsford is, and has been, aware
that homeless people living in Abbotsford, including Abbotsfords Homeless,
face barriers to shelter and housing as particularized above.

17.       Abbotsford has sought and continues
to seek to reduce the number of Abbotsfords Homeless through the use of
policing and bylaw enforcement tactics.

18.       In particular Abbotsford relies on
the:

Parks Bylaw
, 1996
No. 160-96 (the 
Parks

Bylaw
);

Consolidated Street and Traffic Bylaw
, 2006, Bylaw No. 1536-2006 (the Street And Traffic Bylaw); and

Good Neighbour Bylaw
, Bylaw No. 1256-2003 (the Good Neighbour Bylaw).

19.       Tactics employed by Abbotsford,
including members of the APD, include but are not limited to (the Displacement
Tactics):

a)

issuing bylaw enforcement notices on Abbot
sfords Homeless requiring them
to vacate the
public spaces (Eviction Notices);

b)


enforcing Eviction Notices by way of court ordered injunctions,
which injunctions include enforcement provisions pursuant to the
Criminal
Code,
R.S.C., 1985, c. C-46;

c)

ordering Abbotsfords Homeless to move and/or disperse from
various public spaces verbally and without the issuance of Eviction Notices;

d)

selective policing practices, often referred to as proactive
policing, in areas known to be frequented by Abbotsfords Homeless;

e)

spraying bear spray by members of the APD into the tents and onto
the belongings of some of Abbotsfords Homeless, destroying their Survival
Shelters, clothing, hygiene items, food and other personal property;

f)

slashing tents and belongings of some of Abbotsfords Homeless by
members of the APD, destroying their Survival Shelters and personal property;

g)

spreading chicken manure on a longstanding homeless camp located
on Gladys Avenue by Abbotsford employees;

h)

otherwise destroying or disposing of the personal property of
Abbotsfords Homeless;

i)

failing to
develop needed housing for people who are homeless or at risk of homelessness.

[6]

In December 2014, the Association appeared before
Chief Justice Hinkson, requesting third-party disclosure from the APD pursuant
to r. 7-1(18) of the
Supreme Court Civil Rules
. As already noted, Chief
Justice Hinkson ordered the APD to provide the requested disclosure, but also
included an order for costs for the production of the documents requested from
the [APD] in any event of the cause. The Association seeks leave to appeal this
order for costs in any event of the cause.

Positions of the Parties

[7]

The Association submits that Hinkson C.J. failed
to apply the correct legal test when determining which party should bear the
costs of the disclosure. The Association submits that the correct test for
determining which party should bear the costs is what is just in the
circumstances, and cites
A.L. Sott Financial (Newton) Ltd. v. Bauman
,
[1998] B.C.J. No. 950, for this proposition. The Association argues that
Hinkson C.J. failed to apply this test, and instead made his determination on
the basis that there was a presumption that a litigant should automatically be
required to pay the costs of third-party document disclosure.

[8]

The Association submits that it would not be
just in the circumstances to require it to pay the costs of third-party
disclosure in any event of the cause because of the unique circumstances of
this case. The Association is seeking relief pursuant to s. 24(1) of the
Charter
for various alleged
Charter
breaches, some of which are as a result
of the actions of the APD. I understand, also, that certain tort claims are
advanced against the APD. However, because the APD is not a legal entity, it
cannot be sued directly by the Association and be made a party to the action as
a co-defendant:
Henry v. British Columbia
, 2014 BCSC 1018.

[9]

In
Henry
, also decided by Hinkson C.J., it
was determined that the records of the Vancouver Police Department were not
within the possession, control, or power of the City of Vancouver: at para. 35.
The consequence of
Henry
is that, despite the fact that the Association
is alleging unconstitutional actions on the part of the APD, it cannot obtain
any disclosure from the APD without resorting to the third-party disclosure
process under r. 7-1(18). The Association argues that this is fundamentally
unfair, as it would not be required to pay costs in any event of the cause if
the APD was able to be sued as a co-defendant. In this case, the APD is not in
the same position as an innocent third party, and the same costs
considerations should not apply. The Association argues, and has provided
affidavit evidence in support, that it will be unable to pay these costs.
Implicitly, the disclosure may not occur if the Association must pay the
administrative and legal costs in accordance with Hinkson C.J.s order.

[10]

The APD submits that Hinkson C.J. made no error
in ordering costs be paid by the Association in any event of the cause. The APD
argues that
A.L. Sott
is a decision of a master and is not persuasive
authority for the proposition that there is a just in all the circumstances
test for ordering costs in these circumstances. As a third-party, the APD will
be unable to speak to costs at the conclusion of the trial, and will therefore
not have another opportunity to recoup the necessary expense in providing the
ordered disclosure.

[11]

The co-respondent, City of Abbotsford, does not take
any position on the appeal, and did not take a position before the chambers
judge. The City does argue that leave ought not be granted if doing so would
result in an adjournment of the trial presently set for June 29, 2015.

[12]

The Attorney General takes no position.

The Legal Test for Leave to Appeal

[13]

Leave to appeal is required for all orders
defined as limited appeal orders under the
Court of Appeal Rules
: see
Court
of Appeal Act
, s. 7. and r. 2.1(f), which states that an order
granting or refusing costs is a limited appeal order if the only matter being
appealed is that grant or refusal.

[14]

An award of costs is a discretionary order, and
is subject to limited appellate review:
Neufeld v. Foster
, 2000 BCCA 485
at para. 14 (in chambers). However, where there is a question of legal
principle raised by the application that extends beyond the parameters of the
particular case, leave may be granted:
Yung v. Jade Flower Investments Ltd.
,
2012 BCCA 168 at paras. 20, 23 (in chambers).

[15]

The general test to be applied on an application
for leave to appeal requires the applicant to meet the following criteria:

a)

That the appeal has some merit, that is to say the applicant has to
identify an arguable case of sufficient merit to warrant the scrutiny of a
division of the court;

b)

There must be some important issue involved, both to the parties and
to the public in general;

c)

There must be some practical utility to the appeal; and

d)

That the granting of leave would not cause delay in the proceedings
such as to result in serious prejudice to the party opposing.

[
Yung
at para. 17]

Analysis

Merits of the Appeal

[16]

I turn to consider the first factor, the merits
of the appeal.

[17]

At para. 3 of his reasons, Hinkson C.J. states,
I am not persuaded that the relationship between the Abbotsford Police
Department and the City of Abbotsford [is] such that the police department
should be treated as other than third parties for the purposes of document
production. I take this to mean that Hinkson C.J. found the APD to be in the
same position as what would be considered a typical third party. In my
opinion, there is some merit in the argument that the APDas an organization
allegedly directly involved in the
Charter
breaches or tort claims claimed
by the Association, but one that cannot be sued as a co-defendantshould not be
treated the same as other, typical third parties.

[18]

Because a police department or its officers
cannot be sued directly, an action against police must instead be taken against
a municipality, or possibly Her Majesty the Queen. The consequence of
Henry
is
that document disclosure from a police department cannot be obtained without
resort to the third-party disclosure rules. This appears to place plaintiffs
pursuing claims against police departments in a somewhat anomalous position, as
document disclosure will not flow automatically from r. 7-1(1), despite the
fact that it is the documents concerning the very conduct that is in issue
which are sought.

[19]

The APD argues that, as a third party, it will
be unable to speak to costs at the conclusion of the trial, and therefore it
must be able to claim its costs in any event of the cause. This will be an
important consideration should the appeal be heard, but in my opinion, it is
not obvious that this possible prejudice outweighs the arguments of the
Association. I am persuaded that there is some merit to this appeal.

[20]

This factor weighs in favour of granting leave.

Importance to the Parties and the
Public in General

[21]

The Association claims that it will be unable to
afford to pay the costs of the document disclosure. The Association does not
adduce affidavit evidence swearing that it will not be able to proceed with the
document disclosure should leave not be granted, but in my opinion that
possible consequence may be inferred. Some of the claims in the Associations
underlying action turn on alleged conduct of the APD. Without proper disclosure
these claims will be more difficult to pursue.

[22]

Further, in my opinion, this issue of disclosure
of a separate legal entity for which the defendant is vicariously or jointly
liable is of some importance to the public in general. This factor weighs in
favour of granting leave.

The Practical Utility of an Appeal

[23]

An appeal would resolve the procedural issue of
whether the Association can continue with its request for document disclosure
from the APD. This could affect the proceedings below, as the matters to be
determined at trial will be affected by any evidence acquired through the
disclosure.

[24]

This factor weight in favour of granting leave.

Will the Appeal Delay the Progress of
the Action Below or Cause Prejudice

[25]

The Association argues that granting leave would
not cause prejudice and would create only minimal delay.

[26]

The co-respondent, City of Abbotsford, argues
that granting leave could delay the start of the proposed trial. The underlying
action is scheduled to be heard in a six-week trial beginning on June 29. The
appeal may interfere with the trial. In addition to this appeal I am told there
is a pending appeal of an earlier order of the Chief Justice granting standing
to the Association (2014 BCSC 1817).

Conclusion

[27]

In my opinion, leave should be granted. There is
a legal principle to be resolved that is of importance to the parties, the public,
and the profession generally, as already explained above.

[28]

In my opinion, only the possible delay of the
underlying trial weighs against granting leave, but this does not outweigh the
other factors. I believe that this factor may be ameliorated by ordering that
this appeal be expedited. The parties should contact the registrar to arrange
an expedited hearing date. The parties are at liberty to use their materials
filed on the leave application on the appeal proper, or some combination of the
leave materials and supplemental materials. The parties may apply to the
Registrar to settle the contents of the appeal books and facta if they are
unable to agree.

[29]

I therefore grant leave to appeal the costs order. I
order that the appeal be expedited.

The Honourable Madam Justice Garson


