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TRESPASS - To person - Defences

Tuesday, March 10, 2020 @ 8:30 AM  


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Appeal by the plaintiff from the dismissal of his claim for personal injuries against the defendant Wray. The appellant as injured during his arrest by Wray, a police officer. The trial judge found Wray used excessive force in arresting the appellant and that all elements of the tort of assault were made out against Wray. The trial judge accepted, however, that Wray was entitled to rely on the statutory defence in s. 21 of the Police Act since he was performing police duties when he effected the arrest and did not act with gross negligence. The appellant argued that the trial judge erred in finding that the statutory defence was made out because the constable was not acting in accordance with his duties and because he was guilty of wilful misconduct, which was not argued before the trial judge but was pleaded and was not abandoned.

HELD: Appeal allowed. New trial ordered. The officer was acting in the performance of his duties since he was arresting a person who he had reasonable grounds to believe was guilty of impaired driving. Wilful misconduct was clearly raised by the pleadings and ought to have been in the mind of counsel for both parties during the hearing. While gross negligence and wilful misconduct both represented marked departures from expected standards of conduct, they had different focuses. There was not detailed analysis by the judge as to why gross negligence was not made out, and it was at least conceivable that he did not consider the conduct of the officer to be as egregious as might be inferred from some of his findings. The judge’s failure to consider wilful misconduct was not a harmless error. Determining whether Wray engaged in wilful misconduct would require, among other things, determining his state of mind. Such a determination required a nuanced assessment of the evidence and an evaluation of the credibility and reliability of the witnesses.

Lapshinoff v. Wray, [2020] B.C.J. No. 109, British Columbia Court of Appeal, H. Groberman, J.J.L. Hunter and S.A. Griffin JJ.A., January 27, 2020. Digest No. TLD-March92020006