Another Case of Damages Against Vancouver Police: Baiden v. Vancouver (City)

On August 16, 2010, the British Columbia Court of Appeal released its decision in Baiden v. Vancouver (City), 2010 BCCA 375, regarding the costs and disbursements awarded following Todd Baiden’s successful action for damages against the police, the City of Vancouver and others for battery. Baiden was asleep in his locked place of employment when the police arrived to investigate reports of suspicious activity. The police inflicted serious injuries upon him that required emergency surgery and hospitalization after they mistook him for a person “up to no good.” Of particular interest is the issue regarding the trial judge’s decision to allow disbursements for the police defendants for steps taken on their behalf alone, which were primarily related to their examinations for discovery. Although the employer was ultimately held to be vicariously liable for the police’s actions, the police defendants incurred costs for personal representation. Five out of the six police defendants requested that they receive costs and disbursements.

Baiden argued that it would be unjust for him to be required to pay for the police’s costs and disbursements because parts of the discoveries of each officer were read in at trial as part of his case. Although the Police Act, R.S.B.C. 1996, c. 367 limited the possibility of claiming against each officer personally, he argued that it was reasonable and necessary to include them as defendants so that counsel could examine them for discovery.

Neilson J., writing on behalf of the unanimous Court of Appeal, held that the trial judge did not err in exercising his discretion to award limited costs and disbursements to five of the six police defendants. Baiden knew that he did not have evidence to fulfill the requirements under s. 21 of the Police Act in order to have an action against an individual police officer. Section 21 states

21  (1) In this section, “police officer” means a person holding an appointment as a constable under this Act.
(2) No action for damages lies against a police officer or any other person appointed under this Act for anything said or done or omitted to be said or done by him or her in the performance or intended performance of his or her duty or in the exercise of his or her power or for any alleged neglect or default in the performance or intended performance of his or her duty or exercise of his or her power.
(3) Subsection (2) does not provide a defence if
(a) the police officer or other person appointed under this Act has, in relation to the conduct that is the subject matter of action, been guilty of dishonesty, gross negligence or malicious or wilful misconduct, or
(b) the cause of action is libel or slander.

Neilson J. held that while Baiden “may have gained some useful information from their examinations for discovery, the Rules of Court… provide other means of accomplishing the same end without joining them as defendants.” The Court of Appeal’s decision is consistent with the policies of efficiency and economy that underpin the modern court system.

Neilson J. also held that the trial judge was correct to find that the circumstances of this case were indistinguishable from those in Ward v. Vancouver (City), 2010 SCC 27. Recall that in Ward, the plaintiff Ward was awarded damages for the violation of his s. 8 Charter rights. The Vancouver police mistook Ward as a person suspected of trying to pie former Prime Minister Jean Chretien in the face. Tysoe J., who wrote the trial decision in Ward, held that it was not reasonably necessary to have joined police officers as individual defendants when the City was vicariously liable for torts they committed, and awarded costs in favour of the police officers.

The Court of Appeal was correct to uphold the trial judge’s decision regarding the police’s costs and disbursements. Although the police did commit a tort against Baiden, that does not mean that Baiden could waste court resources and avoid paying costs and disbursements for using the less efficient route to obtaining information.