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Torts - Vicarious liability - Negligence - Where a statute makes two or more parties who are “at fault” jointly and severally liable, does that make vicariously liable parties jointly and severally liable with unrelated tortfeasors.

Brenda Hohn was killed when her car was struck by a stolen vehicle driven by T.B., then 14 years old. The stolen vehicle had been pursued by Constable McBryan of the Royal Canadian Mounted Police (“R.C.M.P.”). Ms. Hohn’s family brought an action for compensation under the Family Compensation Act, R.S.B.C. 1996, c. 126. Following a summary trial to determine who was at fault, it was found that T.B. was 90 per cent at fault and Constable McBryan 10 per cent at fault. The Police Act, R.S.B.C. 1996, c. 367, s. 21, provides that “no action for damages lies against a police officer” for negligence in the performance of his duty. Section 11(1) of the Police Act makes the Attorney General of British Columbia (“AGBC”) “jointly and severally liable for torts committed by provincial constables” in the performance of their duties. Thus, the AGBC was vicariously liable for the fault of Constable McBryan. Under Article 10.7(a) of the Provincial Police Service Agreement (“Agreement”) between the Province of British Columbia and the Government of Canada, Canada undertakes to indemnify the Province with respect to any claims or actions in which the Province may be or may become liable, where a police officer received the benefit of a statutory defence under the Police Act. The Federal Government assumes conduct of any proceedings relating to such claim. The Insurance Corporation of British Columbia (“ICBC”) informed the AGBC that it did not intend to pay any portion of the family’s damages. The R.C.M.P. pursuant to its obligation under the Agreement paid the family 10 per cent of the damages. The AGBC brought a third party claim against ICBC. T.B. did not have a driver’s licence and was not insured. He was unable to pay his 90 per cent share of the damages. The family then applied to ICBC for payment of the 90 per cent under the “uninsured motorist provisions” found in s. 20 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231, and the “underinsured motorist provisions” found in s. 148.1 of the Revised Regulation (1984) Under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83. ICBC refused to pay any portion of the damages.

The AGBC and ICBC sought the opinion of the Supreme Court of British Columbia on five questions concerning ICBC’s liability to pay any portion of the damages. The chambers judge determined that the AGBC was jointly and severally liable with T.B. for 100 per cent of the damages under s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333. The chambers judge also concluded that ICBC was required to pay a portion of the 90 per cent of the damages for which T.B. was found liable. The AGBC appealed and the ICBC cross-appealed. After the chambers judge made her orders, the AGBC paid the family the 90 per cent of the damages and took an assignment from them of their rights against ICBC. The British Columbia Court of Appeal upheld the chambers judge’s decision with respect to joint and several liability, and allowed the cross-appeal holding that the AGBC was not entitled to contribution from ICBC. The AGBC then unsuccessfully applied for a rehearing of the appeal.

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