Wednesday, May 5, 2010

Summary Trial: If no evidence to support Claim - Dismiss - Harrison v. BC (Child & Family Devpt) BC Ct of Appeal - May 5 2010 - By Corey D Steinberg

In a Summary Trial (18A under the BC Rules of Civil Procedure, but with similar provisions in other provincial Rules) each party is expected to put its best foot forward, and "lead trump" or risk losing. It is not up to the judge deciding the case to consider that something else could come up at trial.

This Appellate decision stands for the principle that the record before that judge is the record, and if there is no evidence that could support the claims made, the action should be dismissed.

(I have edited the case, below, for brevity; but a link to the full judgment appears at the bottom ~ CDS)
Harrison v. British Columbia (Children and Family Development),2010 BCCA 220 (May 5, 2010)

[3] .. Mr. Harrison filed a claim seeking damages of $520 million for the improper disclosure of personal information by the MCFD to Access House. …

[4] … alleging three causes of action in tort: negligence, defamation and misfeasance in public office.

[5] The appellants and Mr. Harrison each applied to have the action determined by summary trial … and it was their common position that this evidence provided an adequate basis to properly resolve the issues pursuant to R. 18A.

[6] At the summary trial, however, the trial judge disagreed. He dismissed all of the claims against Mr. McNeill, but declined to grant judgment with respect to the other defendants on the basis that there was a conflict in the affidavit evidence that left “too many questions unanswered”.

[7] The appellants appeal that order.

[10] In 1996 Mr. Harrison operated a licensed family child care in Sechelt, British Columbia, with his then spouse. In August 1996, a person … made an allegation that, five years earlier, Mr. Harrison may have abused his infant daughter.

[11] The Ministry intake worker in Sechelt opened an “Assessment Only” file. The allegation, the only ever made against Mr. Harrison, was noted to be “outside of statutory definition”. It was determined and noted in the file that no further action would be taken.

[13] Mr. Harrison contacted the Ministry to discuss the file, and was told by the intake worker that no investigation had or would be undertaken with respect to the unsubstantiated allegation. Mr. Harrison continued to operate the child care business with his spouse. No further action was taken by the Ministry, and no further complaints were received.

[15] On April 29, 2006, Mr. Harrison was interviewed by Access House’s program director, Marian Haden, for a temporary contract to assist staff with a particular youth with severe behavioural difficulties. At the conclusion of the interview he was told he had been hired …

[17] Because of the unusual manner in which Mr. Harrison was hired, neither the checks nor the training normally required by Access House policy were completed before he began ...

[19] At some time between May 10 and 12, 2006, Ms. Bischoff advised the acting program director of Access House, Jessie Ford, that the PCC had turned up a file concerning Mr. Harrison, and that she wished to investigate further. She also told Ms. Ford she wished to receive more specific consent to the disclosure of information before openly discussing the file. …

[20] On May 14, 2006, Mr. Harrison attended a meeting with Ms. Ford and Ms. Haden...

[21] The appellants argue that at the time of that meeting, no details regarding the contents of the file had been disclosed to Access House, and all Ms. Ford and Ms. Haden knew was that “something had come up”...

[22] According to Mr. Harrison, however, it was apparent at the meeting … the Ministry had reported it had a file regarding him and his daughter, it had not been properly investigated, and he was to be supervised while working with youth...

[23] On May 18, 2006, Mr. Harrison signed a second, more detailed consent to disclose, and was informed by Access House staff he would need supervision while working with youth, something Ms. Bischoff had suggested in an email that day “to be on the safe side” until her investigation was complete.

[24] On May 24, 2006, Mr. Harrison was told by Ms. Haden that, in light of the need for supervision, his contract of employment was terminated.

[25] Ms. Bischoff claims that it was only after receiving the second consent that she shared the general content of the file, her concerns about the adequacy of the 1996 investigation and her belief that the files as a whole contained some “red flags”...

[26] Within a week of his termination, Mr. Harrison requested a formal review by the MCFD … Mr. Harrison was dissatisfied with the outcome of the review, and filed a complaint with the Privacy Commissioner.

[27] In September 2007, the Commissioner found Mr. Harrison’s complaint to be unsubstantiated…

[28] Judicial review of that decision initially resulted in the matter being remitted to the Commissioner for consideration …

[29] In April 2008, Mr. Harrison brought the present action, seeking damages of $520 million against the Ministry, Ms. Bischoff and the MCFD regional director, Bruce McNeill. Both Mr. Harrison and the defendants applied to have the action determined by way of summary trial.

Reasons of the Summary Trial Judge

[30] At the summary trial, the judge dismissed all claims against Mr. McNeill.

[31] With respect to the claims against Ms. Bischoff, however… The trial judge determined a full trial was required because of “a conflict in the evidence that cannot be resolved simply by examining the affidavits and transcripts of the examinations for discovery ...

Issues on Appeal

[36] The appellants’ primary submission on this appeal (as it was at trial) is that the conflict in the evidence is immaterial to the merits of the case. They argue that the uncontested legal principles relevant to the three causes of action lead invariably to the same conclusion, irrespective of which version of events is accepted, that Mr. Harrison’s claims are not supported by the evidence.


[39] In my opinion, the evidentiary conflict identified by the trial judge did not preclude him from adjudicating the issues of negligence, defamation or misfeasance in public office. On the contrary, I find that the evidentiary record provides all of the facts necessary to grant the appellants’ application for summary judgment, and it would not have been unfair to do so.

The Correct Approach to Rule 18A

[40] … It is not a question of whether a full trial could conceivably “turn something up” or produce a different result…

[41] When an application under R. 18A is made, it is the obligation of the parties to take every reasonable step to put themselves in the best possible position and adduce all evidence they believe is necessary for judgment: Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 275 at para. 34. I find the parties had this opportunity, and note that the record before the trial judge was considerable.

[42] Appellate interference will be justified if the trial judge’s determination that judgment should not be granted under R. 18A is “clearly wrong”: McGregor v. Van Tilborg, 2005 BCCA 217 at para. 21. If all of the facts necessary to support the defendant’s application for dismissal could have been found in the evidentiary record, and it would not have been unjust for the trial judge to have done so, this Court will be entitled to substitute its opinion and dismiss the action: Pearlman v. American Commerce Insurance Company, 2009 BCCA 78 at para. 36.


[45] A claim in negligence can only arise if the defendant owes the plaintiff a duty of care: Cooper v. Hobart, [2001] 3 S.C.R. 537; Reference re Broome v. Prince Edward Island, 2010 SCC 11 at para. 12.

[52] The primary obligation of social workers operating under the CFCSA … provides that the safety and well-being of children must be the paramount considerations in the administration of the statute. It is in the context of this statutory mandate that Ms. Bischoff was expressly required to review the background of individuals seeking to work with vulnerable children in the care of the MCFD.

[53] Imposing a private law duty of care on a social worker to those whose background he or she must review for child safety concerns has the potential to interfere with their ability to discharge that vital task. More broadly, it would interfere with the paramount duty to the safety of the child … Accordingly, imposing a duty of care on Ms. Bischoff in these circumstances poses precisely the risk for inherent conflict …

[55] For these reasons, and irrespective of the conflict in the evidence, Mr. Harrison’s claim in negligence could not succeed...

Misfeasance in Public Office

[57] The second cause of action identified by the appellants in Mr. Harrison’s statement of claim is misfeasance in public office.

[58] To be successful, Mr. Harrison must prove either that Ms. Bischoff acted with the specific purpose of causing his injury (“Category A”), or that she was aware she acted unlawfully and knew harm to the plaintiff would be the likely result (“Category B”). In either case, Mr. Harrison must establish that Ms. Bischoff deliberately disregarded the obligations of her office, and was aware of the harm it would cause him: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263.

[59] There is no evidence whatsoever of Ms. Bischoff having acted with targeted malice against Mr. Harrison. …nothing in the pleadings or evidentiary record could possibly support a claim under Category A.

[60] As for a claim under Category B, I find that the evidentiary record—even when read in the manner most generous to the plaintiff, and with all conflicts resolved in his favour—is incapable of satisfying the requirements of this tort.

[61] Misfeasance in public office is an intentional tort requiring proof of bad faith. … “where bad faith on the part of a public official is alleged, clear proof commensurate with the seriousness of the wrong should be provided”. …

[63] … The evidence from the appellants is all to the contrary, and even if the version of events argued by Mr. Harrison were to be established at trial, the record would remain incapable of providing the “clear proof” necessary for a trier of fact to find that Ms. Bischoff acted with bad faith in her communications with Access House.

[64] The trial judge was plainly wrong to conclude that he could not find the facts necessary to adjudicate this claim, and I find the appellants are entitled to have the action in misfeasance in public office dismissed.


[65] The final cause of action raised by Mr. Harrison is defamation.

[66] I agree with the appellants that this action cannot succeed because the communications between Ms. Bischoff and Ms. Ford occurred on occasions of qualified privilege without malice.

[67] The defence of qualified privilege operates to protect otherwise defamatory communications that are made on occasions of qualified privilege. Privileged occasions arise where the person making the statement has an interest—legal, social or moral—to make the statement to persons with a corresponding interest or duty to receive it: Moises v. Canadian Newspaper Co. (1996), 24 B.C.L.R. (3d) 211 (C.A.); Haight-Smith v. Neden, 2002 BCCA 132 at paras. 52-55.

[68] In this case, Ms. Bischoff had a legal and moral duty to ensure the protection of youth in the care of the MCFD. Ms. Ford had a corresponding duty to receive information about an individual providing care to youth …

[69] The law is clear that statements made on such occasions are protected, as long as they are made in good faith and honestly for the purpose for which the privilege exists: Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at para. 79.

[70] The onus for defeating the defence rests entirely on the plaintiff: Netupsky v. Craig, [1973] S.C.R. 55. I have already concluded that there is no evidence that Ms. Bischoff acted with bad faith. Mr. Harrison has therefore failed to meet this onus, and the defence of qualified privilege remains a complete defence to his claim in defamation. It follows that the appellants are entitled to have this action dismissed.

Summary & Conclusion

[71] The evidence adduced at the summary trial provided all of the facts necessary to support the appellants’ application for dismissal of the claims against them, and it would not have been unjust to do so.

[72] Ms. Bischoff did not owe Mr. Harrison a duty of care in negligence, and there is no evidence of bad faith that would support the claim of misfeasance in public office or overcome the defence of qualified privilege to the claim in defamation.

[73] These conclusions are reached on the basis of facts and legal principles that are unaffected by the “unanswered questions” that concerned the trial judge. However those questions are answered, and whichever version of events is accepted, it would not advance Mr. Harrison’s claim. The result would be the same.

[74] Thus, the trial judge erred in concluding he was obliged to dismiss the appellants’ applications for summary judgment. The appellants are entitled to have the action against them dismissed.

[75] I would allow the appeal, set aside the order of the trial judge, and dismiss Mr. Harrison’s action.

“The Honourable Madam Justice Levine”

I Agree:
“The Honourable Mr. Justice K. Smith”

I Agree:
“The Honourable Mr. Justice Frankel”

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