Mountie’s million-dollar award upheld by B.C. court

British Columbia liable for commanding officer’s harassment of female constable

The B.C. Court of Appeal has upheld a $950,000 award against the Royal Canadian Mounted Police for a commanding officer’s harassment of a female police constable.

In 2006 the B.C. Supreme Court awarded Nancy Sulz $950,000 for the harassment she’d experienced from her commanding officer, Staff Sgt. Smith, in 1994 and 1995.

Sulz testified that Smith had been hostile and vindictive towards her, had ostracized her and had criticized her to colleagues and supervisors. It resulted in a deterioration of her physical and mental health (two RCMP doctors diagnosed her as having a major depressive disorder) and eventually Sulz took sick leave.

The court criticized Smith’s “harassing conduct,” which included “angry outbursts” and “intemperate and at times unreasonable behaviour.” These caused Sulz “serious emotional problems” and created a “troubled work environment,” concluded the court.

Sulz’s legal action had been against the federal government, the province of British Columbia and Smith personally. The court dismissed the claims against the federal crown and against Smith (under the Police Act he is protected from liability for actions performed while on duty) but found the province vicariously liable for the negligent infliction of mental suffering he’d committed.

The court awarded $125,000 for general damages, $225,000 for loss of past wages and $600,000 for future wage loss. Despite extensive psychotherapy and medication Sulz had not recovered from depression, and she continued to be unable to cope with any form of regular employment.

The province did not contest the finding of negligence or the amount of damages, but it appealed the overall judgment on the grounds that:

•The trial judge should not have accepted jurisdiction over Sulz’s claim, and instead should have deferred the matter to tribunals specializing in workplace issues under the Royal Canadian Mounted Police Act or the Canadian Human Rights Act.

•Since the federal government and the province are in an agreement under which the federal crown indemnifies the province for torts committed by RCMP provincial constables, and since federal laws prevent a claimant from recovering damages from the federal Crown in these sorts of cases, the award allowed Sulz to get indirectly what she’s prevented from getting directly.

•Under the Police Act the province is only liable for torts committed by commanders doing operational duties, whereas Smith committed the torts while carrying out managerial duties.

•The trial judge erred in calculating the award, allowing Sulz to be awarded “double damages.”

The court’s ruling

There was no jurisdictional issue. Generally, courts defer to expert tribunals and arbitrators. But Sulz had made a formal complaint, resulting in a determination that she had been harassed. The internal process was then exhausted, leaving Sulz with no opportunity to be compensated, ruled the Court of Appeal.

The court also noted that only part of Sulz’s complaint was based on gender, so the Human Rights Tribunal established under the Canadian Human Rights Act may not have had jurisdiction over the case. In addition, the one-year limitation period to make a claim under that act had expired while the RCMP’s internal procedures had not yet been completed.

The province’s agreement with the federal government was far removed from the circumstances of this case. It cannot therefore be used to limit the rights, under provincial legislation, of a victim of a tort, ruled the court. Had the two jurisdictions wished to limit the application of the Police Act they could have done so by legislative means.

The court dismissed the province’s argument that it is not liable for torts committed by officers doing managerial duties. There is nothing in the wording or the context of the Police Act to suggest that interpretation. Police officers are charged with carrying out all the duties, functions and instructions imposed on their office. The act considers that police officers may commit torts while carrying out any of their duties, and does not apply only to torts committed by inferior officers, it decided.

The trial judge was right in not deducting Sulz’s superannuation benefits from the damages. The superannuation pension is similar to CPP disability benefits and other pension payments which have consistently been held to be non-deductible. Sulz was entitled to it because she was discharged from the RCMP, not because she was injured by a tort, concluded the court in upholding the $950,000 award.

For more information see:

Sulz v. Canada (Attorney General), 2006 CarswellBC 3137 (B.C. C.A.)

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