



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:



Amezcua v. Taylor,









2009 BCCA 42




Date: 20090206

Docket: CA036574

Between:

Justine Amezcua

Appellant

(
Plaintiff
)

And

Stephanie Taylor

Respondent

(
Defendant
)




Before:



The Honourable Mr. Justice Donald





(In Chambers)









J. L. Harbut



Counsel for the Appellant





S. G. Pereira



Counsel for the Respondent





Place
  and Date of Hearing:



Vancouver
, British Columbia





January 22, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





February 6, 2009




Reasons for Judgment
of the Honourable Mr. Justice Donald:

[1]

This is the respondents motion
for directions whether leave is required to appeal the order of Madam Justice
Stromberg-Stein made 16 October 2008, setting aside the order of a Master which
added the Minister of Public Safety and the Solicitor General of the Province
of British Columbia (the Minister) as a defendant.  The reasons for judgment
are indexed as 2008 BCSC 1494.

[2]

I have concluded that leave is not
required and the appeal has been properly brought by the filing of a notice of
appeal.

[3]

The action arises from a motor
vehicle accident which occurred in 1999 at an intersection in North Vancouver. 
The respondent driver was on duty as an officer of the Royal Canadian Mounted
Police at the time of the collision.  She admits in her statement of defence
that the accident happened as a result of her simple and regular negligence. 
She also pleads the protection afforded her under the
Police Act
,
R.S.B.C. 1996, c. 367:

9.         In
answer to the whole of the Statement of Claim, the Defendant pleads and relies
upon section 14(1), 14(2) and 21 of the
Police Act
, as amended and say
that no action lies against her in this matter.

[4]

The gist of those provisions of
the
Police Act
is that no action lies for simple negligence in the
course and scope of an officers employment.  But that protection is only for
the officer; under s. 11 of the
Act
, the Minister is vicariously liable
for the officers simple negligence.  The
Act
also provides that the
individual officer is not shielded from gross negligence.

[5]

By moving to add the Minister as a
defendant, the appellant hoped to place herself in a position where she could
recover her losses on the basis of vicarious liability for simple negligence. 
The problem is that the appellant waited a very long time to bring the motion,
and did so only years after the limitation date had expired.  The Master found
that although the delay was inordinate and not satisfactorily explained, the
respondent and the Minister had suffered no prejudice and so he granted the
order.  The reviewing judge reversed on the ground that the Master ignored the
loss of a limitation defence in assessing prejudice.

[6]

The question of whether leave to
appeal is required turns on whether this is a final or interlocutory order. 
The answer lies in the effect of the order  does it dispose of a substantive
issue in the action?:
Forest Glen Wood Products Ltd. v. British Columbia
(Minister of Forests)
, 2008 BCCA 480.  I think it does.  Effectively, the
order decides with finality that (i) the action against the respondent in
simple negligence is futile; (ii) the only cause of action available against
the respondent is in gross negligence; and (iii) the Minister has the benefit
of the limitation defence.  Thus, it is a final order and leave of this Court
is not needed.

[7]

I cannot accept the argument that
this is merely an interlocutory order because it does not alter the position of
the parties as their pleadings presently stand.

[8]

The respondents representatives
warned the appellants solicitors consistently from the early stages of the
action that the appellants pleadings are deficient in not overcoming the
barrier to recover against the officer alone for simple negligence.  The order
in question closes the door to recovery, except for gross negligence, which is
not yet pleaded.

[9]

For these reasons, I have decided
that the order gives rise to an appeal as of right.

The Honourable Mr. Justice Donald


