Administrative law – Decisions of administrative tribunals – Police Review Board – Police – Professional governance and discipline – Professional misconduct or conduct unbecoming – Practice and procedure – Summary proceedings – Judicial review – Compliance with legislation – Statutory interpretation – Legislation – Retrospective and retroactive operation
Gulkison v. Vancouver Police Board,  B.C.J. No. 1761, 2015 BCCA 361, British Columbia Court of Appeal, August 17, 2015, M.V. Newbury, M.E. Saunders and D.C. Harris JJ.A.
The plaintiff alleged that he was abused and sexually assaulted between 1957 and 1967 by his cousin, then a member of the Vancouver Police Department (“VPD”). He claimed against the VPB for damages. The claim was based on the premise that the VPB is responsible for the liabilities of the Board, the administrator of the VPD before enactment of the Police Act, SBC 1974, c. 64. The VPB applied for a dismissal of the action on the basis that it had no liability for events ending in 1969 in the VPD.
At the trial level, the VPB applied under Rules 9-3(5) (Special Case) and 9-7(2) (Summary Trial) for dismissal. The questions it posed were the following:
- Are the Board and the VPB separate entities?
- If the answer to the foregoing is in the affirmative, can the VPB be liable for any liabilities attributed to the Board?
The parties agreed that if the answer to the first question is yes, and the answer to the second question is no, then the Court would dismiss the Plaintiff’s action.
In answering the first question, the trial judge found that the Board and the VPB were separate entities. The BC Court of Appeal agreed with this. The plaintiff, in cross appeal, argued that in the alternative to sustain the order on the basis that the judge erred in answering the first question.
With respect to the relevant historical background, the Board ceased to exist by repeal of Part XXI of the Vancouver Charter in 1974. However, there was a 44-day gap between repeal of Part XXI and the establishment of the VPB, during which the Board met on Vancouver police business. The plaintiff argued that this demonstrated that the Board did not evaporate. Additionally, the plaintiff argued that there was no legal separation between the VPB and the Board because the Charter included the Board within the definition of “other administrative body” and its tie in to a provision in s. 147 of the Charter which says “other administrative bodies” which is deemed to be continuing.
The BC Court of Appeal, acknowledged the “historical curiosities”, but nonetheless found that when Part XXI of the Vancouver Charter was repealed, the legislation under which the Board had jurisdiction and under which acted ceased to exist.
Regarding the second question of whether the VPB could be liable for any potential liabilities of the Board, the Appeal Court noted that until passage of the Police Act in 1974, which created our modern organizational structure for municipal policing, it was the common law that answered whether the Board was vicariously liable for the wrongs of police constables. On this, Appeal Court found the jurisprudence was clear that neither a Board nor a municipality was vicariously liable for the actions of a police constable absent statutory language to that effect. Additionally, the Appeal Court found that with the practicalities of the administrative structure for municipal policing before 1974, the personnel issues could not create liability as between members of the community and the Board.
In light of the above, the Appeal Court allowed the action and dismissed the action against the Board.
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