A B.C. man with debilitating injuries sustained during an arrest in Saanich in 2010 is appealing a court ruling that denied him $120,000 in compensation over a failure to comply with a notice requirement.
Supreme Court Justice Ian Meiklem found Saanich Police used excessive force in the arrest of Don Lapshinoff, resulting in a dislocated shoulder and permanent injury to his arm and shoulder. However, the judge dismissed the action in his Dec. 27 ruling over Lapshinoff’s failure to comply with a B.C. law to provide written notice to the municipality within two months of the incident.
The Local Government Act states that “a municipality is not liable for damages unless written notice setting out the time, place and manner in which damage has been sustained is delivered to the municipality within two months from the date on which the damage was sustained.”
Meiklem acknowledged that Lapshinoff was unaware of the notice requirement and that Lapshinoff stated his desire to sue Saanich to two lawyers during the two-month notice period, but that neither lawyer advised him of the notice requirement and neither lawyer provided notice on his behalf.
Meiklem ruled that ignorance of the statutory requirement is not a reasonable excuse, thereby dismissing the action and, as a result, compensation.
He did note that this is one of the cases described in the Law Reform Commission’s 1990 Report on Notice Requirements in Proceedings Against Municipal Bodies, where it was stated: “In many cases a failure to give notice of the claim does not prejudice the municipality and the only function of the requirement is to provide a ‘technicality’ behind which the municipality and its insurer can hide to defeat otherwise worthy claims.”
“Section 89 of the amended Police Act made it a responsibility of the Chief Constable of the Municipal Department to immediately report to our office if there is a death, a serious harm or a reportable injury,” said Deputy Police Complaint Commissioner Rollie Woods.
Police footage from the holding room, where Lapshinoff was held after his arrest, shows him expressing concern about his shoulder multiple times to multiple officers, receiving cold packs on a couple of occasions. But Meiklem noted in his ruling there was no evidence of any documentation by the police of the injuries sustained during his arrest.
The Saanich Police didn’t notify the Office of the Police Complaint Commissioner until Lapshinoff launched his suit in 2012.
When asked why an investigation wasn’t launched in 2012 when they became aware of the case, the OPCC said it was because it did not receive a complaint from Lapshinoff.
The Police Act states the OPCC has the independent power to order an investigation, whether a complaint is made or not.
On the evening of May 15, 2010, Lapshinoff, an electronics technologist, had just finished showing his boat to a prospective buyer at the Goldstream Marina and was driving back into Victoria with his common-law spouse around 9:15 p.m., court documents show.
After being pulled over on suspicion of impaired driving by Const. Brent Wray of Saanich Police, an altercation ensued, leaving Lapshinoff, 55 at the time, with a dislocated shoulder, torn bicep muscle and two torn tendons in his shoulder.
The judge found Const. Wray’s actions “completely unnecessary” and “only explainable as Constable Wray acting out of a loss of self-control and anger, rather than necessity.”
Lapshinoff testified, and video footage from the station holding room corroborates, that when the handcuffs were removed, his right arm flopped down. He had to pick his right arm up with his left to comply with an officer’s request to put his hands on his head. Over the span of two and a half hours, the video shows Lapshinoff discussing his shoulder with officers. He testified that he requested paramedic attention.
Saanich police attempted to get breath samples from Lapshinoff while he was at the station. In his testimony, Lapshinoff said his chest pain was too severe to permit him to provide the breath sample demanded of him.
Lapshinoff was charged with refusing to provide a breath sample, a charge the Crown would stay on March 27, 2012.
After he was released, hospital records show Lapshinoff went to the emergency department at Royal Jubilee Hospital at approximately 1:30 a.m. on May 16 and had his dislocated shoulder relocated. Later that day, he returned to the hospital regarding tingling and numbness. An ultrasound on June 9 revealed a torn bicep muscle and two torn tendons in his shoulder.
He has undergone two surgeries to his shoulder but is left with an irreparable rotator cuff tear that is permanently disabling. He has been told that he may eventually require shoulder replacement.
A Notice of Appeal has just been filed by Lapshinoff’s lawyer.
Saanich Police Department and the District of Saanich declined to comment due to the upcoming appeal.
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