Armstrong v. The West Vancouver Police Board,


2007 BCSC 164

Date: 20070206
Docket: S-070461
Registry: Vancouver


Scott Armstrong



The West Vancouver Police Board


Before: The Honourable Mr. Justice Ralph

Reasons for Judgment
(In Chambers)

Counsel for the Plaintiff

Murray Tevlin and
Christopher R. Forguson

Counsel for the Defendant

Norman K. Trerise

Date and Place of Hearing:

Vancouver, B.C.


January 26-27, 2007

[1]                On February 1, 2006, the West Vancouver Police Board appointed the plaintiff, Mr. Armstrong, to the position of Chief Constable of the West Vancouver Police Department for a term of five years.  At that time he had been employed as a police officer in West Vancouver since 1977.  On a number of occasions over that time he was the acting Chief Constable, including the period from September 30, 2005, to the date of his appointment.

[2]                In contemplation of Mr. Armstrong’s appointment, the parties entered into a written Employment Agreement on January 23, 2006.  Section 4.0 of the agreement is titled “Performance Review”.  Section 4.1 of the agreement required the Police Board, during the first twelve months of the agreement, to “assess and evaluate Armstrong’s performance as the Chief Constable”.  If, in the Board’s opinion, Chief Armstrong’s performance did not meet the expectations of the Police Board during this twelve month period, the Board was “entitled to terminate Armstrong’s employment as the Chief Constable of the Department pursuant to Section 7.3 of this Agreement.”

[3]                Section 7.3 of the agreement provides that if Chief Armstrong’s employment as Chief Constable is terminated pursuant to Section 4.1 of the agreement, the Board is required to pay him an amount equal to six months’ salary.  The agreement sets out more than one method for the six months’ salary to be paid, but it is not relevant to the present application.

[4]                The agreement also contains, as clauses 7.2 and 7.4, a provision that the Police Board may terminate Chief Armstrong’s employment as the Chief Constable at any time without cause, provided it pays him six months’ salary, if the termination takes place within the first 12 months of his employment or 18 months’ salary if termination occurs after the first 12 months of his employment.

[5]                On December 4, 2006, the Police Board sent Chief Armstrong a two-page letter advising him of the termination of his employment as Chief Constable effective January 31, 2007.  The letter referred to a six-month review of his performance, which had been carried out in September 2006 based on “four established criteria for evaluation”.  It also referred to a meeting of the “Performance Review Committee” with Chief Armstrong on November 28, 2006, and a meeting of Chief Armstrong with the Police Board on November 29, 2006.  The letter stated that his termination was pursuant to Section 4.1 of the Employment Agreement and that the basis of the termination was “that your performance as the Chief Constable does not meet the expectations of the Police Board.”  The letter went on to state that on January 31, 2007, the Board would pay him an amount equal to six months’ salary as required in Section 7.3 of the Agreement.

[6]                On January 22, 2007, Chief Armstrong commenced the action now before the court.  He asserts that both section 4.1 permitting early termination of his employment and section 7.2 are unlawful provisions and therefore of no legal force and effect.

[7]                In his statement of claim, Chief Armstrong sets out the relief that he is claiming.  The relief sought includes the following:

(a)        an interim injunction preventing the termination of the Plaintiff’s employment pending trial or a determination of the enforceability of the Probation Term;

(b)        a declaration the Evaluation Period and the termination clauses of the Contract are void as against public policy and severable from the Agreement;

(c)        damages for breach of contract;

(d)        damages to reputation and for the destruction of the present and future career of the Plaintiff due to the actions of the Defendant;

(e)        aggravated and punitive damages.

[8]                The orders that are sought in this application are:

1.         an interim injunction preventing the termination of the plaintiff’s employment pending trial or a determination of the enforceability of the termination clauses in Chief Armstrong’s contract;

2.         a declaration that the Evaluation Period and termination clauses of the contract are void as against public policy and severable from the Agreement; and

3.         in the alternative, a declaration that the Plaintiff continues to be employed by the Defendant with the status of being on paid leave of absence for vacation until his banked holiday time is exhausted.

[9]                Chief Armstrong’s position is that while in an ordinary employee and employer relationship a contractual provision providing for early termination following an unsatisfactory performance review during an initial period of employment may well be upheld, the law is different when the employee is the holder of a “public office”.  A chief of police holds such an office.  The plaintiff says that special provisions therefore apply to his position.  His submission is stated this way:

(1)        As the holder of a public office a police chief cannot be dismissed without cause and he cannot agree to give such a right to a Police Board as it is not his right to give, nor is it the Board’s right to take.

(2)        His duty to the public is to uphold the law without fear or favour.  Any early termination clause is a colourable device which is capable of being used to remove a public officer from office for reasons which may be against the public interest.

(3)        Therefore, our courts have consistently struck down such clauses as being against public policy and the Court should do so in this case.

[10]            As a result, Chief Armstrong says that the court should now declare the termination clauses, including those relating to the performance review, to be void.

[11]            Chief Armstrong has also applied for an interim injunction permitting him to continue in the office of Chief Constable until the trial, or until the court has ruled on the enforceability of the early termination clauses in the Employment Agreement.  Counsel for Chief Armstrong says that if the injunction is not granted Chief Armstrong will suffer irreparable harm.  He points to the fact that Chief Armstrong has worked as a police officer for 30 years and would have difficulty in finding other employment.  He also submits that there would be no serious difficulty if the Chief Constable continues in office until the trial.  The factors that support this submission are the fact that the Chief has accumulated annual leave, sick time, and gratuity days which he can take now, and the fact that there is an acting Chief in place who can carry on the responsibilities of Chief Constable.  Counsel says as well, that the court should consider the facts that Chief Armstrong‘s termination was not for cause and that he was asked to stay on as Chief Constable for two months after the notice of termination.

[12]            The time for the Police Board to file its statement of defence has not yet passed and, to the best of my knowledge, it has not been filed.

[13]            The Police Board opposes the order for a declaration that the termination clauses in the Employment Agreement are void.  It says that it is inappropriate to make such an order at this early stage of the proceeding.  It submits that a declaration is a form of final and substantive relief that should not be granted unless the plaintiff proceeds with, and succeeds in his action.  It says that a declaration is not the equivalent of an interim injunction.

[14]            As to the merits of the declaration which is sought, the Police Board says that it is not contrary to public policy for the Police Board to have provided for an evaluation and assessment period that is explicitly and narrowly defined.  Such a provision seeks to ensure that the Board’s candidate is suitable for the position of a Chief Constable and it is not contrary to public policy that this provision forms part of the Employment Agreement. 

[15]            In response to the claim for an interim injunction, the Police Board says that the application does not meet the tests for such an order.  It says that Chief Armstrong will not suffer irreparable harm if an injunction is not granted.  It argues that, if Chief Armstrong succeeds in his action, damages will be an adequate remedy for him.  It submits that the public interest favours maintenance of the status quo and that granting an injunction would place the municipality in the position of operating with a “dysfunctional relationship between its Police Board and Police Constable” for a period until trial, which could be in excess of a year.


[16]            This application raises two issues:

(1)        Is a declaration under The British Columbia Supreme Court Rules, Rule 5(22) a remedy which may be ordered at this stage of the action?

(2)        Should the court grant an interim injunction preventing the termination of Chief Armstrong’s employment pending a trial or further order of the court? 

[17]            The application must be assessed in terms of the procedural stage the action has reached, the steps that must yet be taken, and the principles the court must apply in considering the application.

[18]            The application before me is framed as one seeking interim relief.  It was brought before the court on short leave.  The notice of motion states that the plaintiff is relying on Rules 44, 45, 51A and 57.  Rule 44 deals with interlocutory applications and Rule 45 with injunctions.  Rules 51A and 57 deal with procedural matters and costs.

The application for a declaration

[19]            Turning first to the application for a declaration, this remedy is one of a number of remedies sought by Chief Armstrong.  The declaration, if made, would not be an interlocutory order but rather, in this case, would constitute one of the remedies Chief Armstrong says should be granted to him for the wrongdoings alleged.

[20]            Other than for interim or interlocutory orders, Chief Armstrong’s entitlement to any or all of the remedies claimed will be dependent on an assessment of the evidence in this action.  At this stage of the action, only some of the evidence is set out in the affidavits filed in this application.

[21]            While counsel did not refer to them, two decisions of this court have commented on applications for declarations that are sought as interim remedies.

[22]            In Kaiser Resources Ltd. v. Western Canada Beverage Corporation (1992), 71 B.C.L.R. (2d) 236, 34 A.C.W.S. (3d) 1025 (S.C.), Bouck J. considered an application for a declaration and an injunction to enforce the declaration.  The application was brought by interlocutory motion under Rule 44.  In summarizing his analysis of the application for the declaration, Bouck J. stated at p. 246:

Claims for a declaratory order and perpetual injunction are final in their nature.  They must be pursued by way of an originating application under Rule 10, or by commencing an action under Rule 8.  There is no authority for bringing such applications by way of an interlocutory motion under Rule 44.

[23]            In Te’Mexw Treaty Assn. v. W.L.C. Developments Ltd (1998), 163 D.L.R (4th) 180, 81 A.C.W.S. (3d) 700 (B.C.S.C.) Davies J. concluded that he did not have jurisdiction to make the interim declaratory order which was sought by the plaintiffs.  At para. 10 he stated:

In the alternative, the plaintiffs seek an order for an interim declaration of rights.  In my view, such a declaration is not available to them at this stage of the action.  Such an order is not available at this stage because a declaration of rights of the parties is by its nature a final order and should not be made until after a full hearing: Shaw v. The Queen In Right of British Columbia, [1982] 6 W.W.R. 718, 140 D.L.R. (3d) 178 (B.C.S.C.).

[24]            I conclude that, because a declaration should not be made until after a full hearing, Chief Armstrong’s application cannot be made at this stage.  This part of his application must be dismissed. 

The application for the injunction

[25]            The factors that must be addressed by the court in considering the injunction application are:

(1)        the strength of the plaintiff’s case;

(2)        whether irreparable harm will result if the injunction is not granted;

(3)        the balance of inconvenience to the parties.

(see RJR – MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385). 

[26]            Various expressions have been used to describe the test for determining the strength of the plaintiff’s case.  In RJR – MacDonald the Supreme Court of Canada adopted the requirement of “a serious question to be tried”.  At paras. 49-50 the court stated:

What then are the indicators of “a serious question to be tried”?  There are no specific requirements which must be met in order to satisfy this test.  The threshold is a low one.  The judge on the application must make a preliminary assessment of the merits of the case. 

Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial….

[27]            Counsel have referred to a number of cases where the contracts of chief constables have been considered by the courts.  The cases recognize that in some circumstances a provision in a contract will not be upheld because it constitutes an unacceptable restriction on the independence of the Chief Constable.  For example, in Pembroke (City) Police Services Board v. Kidder (1995), 123 D.L.R. (4th) 596, 22 O.R. (3d) 663 (Ont. Gen. Div.) Rutherford J. stated at p.605:

The necessary independence of the office of chief of police militates against a finding of authority in an appointed police services board to terminate a police chief’s services with nothing more than the giving of 30 days’ notice. 

[28]            In other cases, courts have found that provisions such as a fixed term of appointment were not in themselves a ground to declare such contractual provisions void (see Chambly (City) v. Gagnon, [1999] 1 S.C.R. 8, 85 A.C.W.S. (3d) 572 and Rossmo v. Vancouver (City) Police Board (2003), B.C.L.R. (4th) 68, 2003 BCCA 677).

[29]            The scope of what may be acceptable in contracts between police boards and chief constables may also be affected by the provisions of the legislation that governs the various provincial police services.  As a result, decisions in one province may be distinguishable from those in another province because of differing provincial legislation.

[30]            In the present case the Police Board relied on the performance evaluation provisions in the agreement as its basis for terminating Chief Armstrong’s employment.  The particular issue raised is whether the performance evaluation provisions as they are drawn in the Employment Agreement and on which the Police Board relied, are void and unenforceable.  In my view, the determination of this issue raises a serious question to be tried and meets the requirements of the first test in deciding whether an interim or interlocutory injunction should be granted.

[31]            I will consider the second and third factors together.  The second factor of whether irreparable harm will result if no injunction is ordered was described in RJR – MacDonald, supra, at para. 59:

“Irreparable” refers to the nature of the harm suffered rather than its magnitude.  It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.  Examples of the former include instances where one party will be put out of business by the court’s decision; where one party will suffer permanent market loss or irrevocable damage to its business reputation; or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined.  The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration. [References omitted]

[32]            In British Columbia (A.G.) v. Wale (1986) 9 B.C.L.R. (2d) 333, 2 A.C.W.S. (3d) 301 (C.A.), McLachlin J.A. (as she then was) considered the approach to be taken in examining the adequacy of damages as a remedy for the respective parties.  At para. 47 she stated:

…In most cases, an interlocutory injunction should not be granted unless there is doubt whether damages would be an adequate remedy in the event the applicant succeeds at trial. …If damages will be an adequate remedy, and it appears that the alleged offender can pay them, the court is generally not justified in giving one party his remedy to the detriment of the other before the issues have been tried.

[33]            McLachlin J.A. also viewed the requirement of irreparable harm as integral to the assessment of the third factor, the balance of convenience between the parties.

[34]            In RJR – MacDonald, supra, the court addressed the approach to be taken in considering the balance of inconvenience as a test.  At para. 62 the court said:

The third test to be applied in an application for interlocutory relief was described by Beetz J. in Metropolitan Stores at p.129 as: “a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits”.

[35]            The court noted that the factors to be considered in the third test were numerous and will vary from case to case.  They include public interest considerations.

[36]            As I have stated above in assessing the first test, I am satisfied that Chief Armstrong has demonstrated a serious case to be tried.

[37]            In determining whether irreparable harm will result if the injunction is not granted, I recognize that Chief Armstrong’s claim is based, in part, on a submission that the termination provisions on which the Police Board relied to end his employment are void for public policy reasons and were therefore of no force and effect as a basis to terminate his employment.

[38]            In my view, however, the essence of Chief Armstrong’s claim is that he has been wrongfully dismissed from his position as Chief Constable.  If he succeeds at trial, his losses are capable of being quantified in monetary terms and there is no suggestion that the Police Board would be unable to pay the damages.  The claim for damages includes a claim for aggravated and punitive damages, which could be available if the Police Board has conducted itself in a manner calling for denunciation.  In that sense, the payment of damages for wrongful dismissal is considered to be an “adequate remedy” if Chief Armstrong succeeds in his action and, therefore, the case for an injunction is not made out.

[39]            There are also what may be considered to be public interest considerations in this application.  They include the need to ensure that the particular qualities and responsibilities that attach to the office of Chief Constable are not harmed and the continuing need of the Police Board to carry out its responsibilities under the Police Act, R.S.B.C. 1996, c. 367.  I do not, however, consider that these considerations move the balance of convenience in favour of an injunction.

[40]            In the result I make the following order:

Chief Armstrong’s applications for:

(1)        an interim injunction preventing the termination of the plaintiff’s employment pending trial or a determination of the enforceability of the termination clauses in Chief Armstrong’s contract is dismissed;

(2)        a declaration that the Evaluation Period and termination clauses of the contract are void as against public policy and severable from the Agreement; and

(3)        in the alternative, a declaration that the plaintiff continues to be employed by the defendant with the status of being on paid leave of absence for vacation until his banked holiday time is exhausted,

are dismissed.

“Bryan F. Ralph, J.”
The Honourable Mr. Justice Bryan F. Ralph