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Indexed as:
Rossmo v. Vancouver (City) Police Board
[2001] B.C.J. No. 2698
2001 BCSC 1775
Vancouver Registry No. S006686

IN THE SUPREME COURT OF BRITISH COLUMBIA

Between

Kim Rossmo

Plaintiff

And

Vancouver Police Board and Deputy Chief Constable J. Unger

Defendants

Allan J.

Heard: June 18 - 20, 25 - 27, October 16, 17 and 22 - 26, 2001.
Judgment: December 19, 2001.
(123 paras.) 

Counsel:

D. Murray Tevlin and Chris Forguson, for the plaintiff.
Alan J. Hamilton and J. Kenneth McEwan, for the defendant, Vancouver Police Board.
Richard H. Hamilton, Q.C., for the defendant, Deputy Chief Constable J. Unger.

 

¶ 1      ALLAN J.:— Dr. Kim Rossmo, the plaintiff, sues the Vancouver Police Board (the "Board") for wrongful dismissal and Deputy Chief Constable ("DCC") Unger for wrongfully interfering with contractual relations and inducing a breach of contract. Regrettably, the highly publicized and sensational nature of the trial was disproportionate to the legal issues involved in the lawsuit. At the instance of the plaintiff, on more than one occasion, the trial degenerated into a highly publicized and sensational investigation into some dysfunctional aspects of the Vancouver Police Department (the "VPD").

Background:

¶ 2      In 1978, Kim Rossmo joined the VPD as a civilian member. In 1980, he became a sworn member of the force and, in 1983, he was promoted to First Class Constable. He was keenly interested in environmental criminology. At his own expense and on his own time, he obtained an M.A. in criminology from Simon Fraser University in 1987. In 1995, he became the first police officer in Canada to hold a Ph.D. in criminology. In his dissertation, he developed an investigative tool known as geographic profiling. That methodology, which has since received international acclaim, analyzes the locations of a connected series of crimes, such as murder or arson, to determine the most probable area of the offender's residence. Geographic profiling is also an effective information management strategy that assists police investigators focus on resource allocation, prioritize tips and suspects, and develop investigation strategies.

¶ 3      In August 1995, Chief Constable Ray Canuel asked Constable Rossmo to submit a proposal for the creation of a full-time geographic profiling unit (the "GPU") within the VPD. Rossmo recommended that:

This plainclothes position should be at the Officer rank and pay and would be called "Detective Inspector" to recognize and communicate its operational and investigative nature. This term places the position outside of the regular rank structure, an important distinction considering the unique nature of the current proposal.

¶ 4      Constable Rossmo envisaged that the position would have two functions:

1.		To provide geographic profiling services to the international police community, including profile preparation, case consultations, presentations, criminal investigative analysis (psychological profiling) liaison, and related activities.
2.		To provide professional criminological advice to the Chief Constable as needed, including expertise in matters related to problem-oriented and community-based policing, organizational structure, innovative crime prevention tactics, urban criminal patterns, statistics, and criminological research.

¶ 5      Constable Rossmo emphasized the fact that the GPU would enhance the VPD's international reputation by giving it world-class stature in the field of geographic profiling, as well as benefiting the VPD locally. He suggested a five-year performance-based contract in order to prove the value of geographic profiling and his ability to perform at that level.

¶ 6      The Board consists of the Mayor of Vancouver, a city appointee, and five provincial appointees. It sets policy, engages the Chief Constable, and acquires funds from the City of Vancouver (the "City") to run the VPD. The Chief Constable and the Senior Management Team ("SMT") are responsible for administration, operations and the deployment of the force. The SMT consists of the Executive Committee (the Chief Constable and the three Deputy Chief Constables), the Inspectors, and the civilian section managers.

¶ 7      On Chief Canuel's recommendation, the Board accepted the proposal for a full-time geographic profiling position subject to contractual terms being concluded. According to its minutes of the October 25, 1995 meeting, the Board was advised that there were "mixed reactions" within the VPD to the position, "particularly since it was outside the promotion process."

¶ 8      Neither the VPD nor the Board considered Rossmo's new position to be a promotion. In his proposal, Rossmo had referred to the fact that "direct officer promotion and lateral entry" were common internationally and were becoming increasingly common in Canadian police forces. He recommended that he be promoted to the rank of Detective Inspector and placed in charge of the GPU. At trial, he was adamant that he had been promoted or "jumped at that time three rank levels." However, Chief Canuel's recommendation, which the Board accepted, did not contemplate Rossmo's "promotion":

I believe we should proceed with the development of this position and that the member be compensated at the pay level and rank of Acting Inspector. I suggest a five year contract would best serve the member and the Department.

¶ 9      The appointment of "Detective Inspector Rossmo" became effective on October 16, 1995. The rank of "Detective Inspector" does not exist within the rank structure of the VPD. In December, Detective Inspector Rossmo drafted an internal informational memorandum that described him as being "promoted to the rank and pay of Detective Inspector." It was never published.

¶ 10      A VPD bulletin, published daily between October 18 and 24, 1995, set out Detective Inspector Rossmo's academic qualifications and internationally recognized expertise and described his position:

	In order to use Dr. Rossmo's expertise, the Chief Constable has announced the formation of a Geographical Profiling Unit, staffed by Dr. Rossmo, who will be hired under contract and assigned the title of Detective Inspector. The Unit will liaise with the international police community and assist other Departments in solving serial murders, rapes and arsons. This capability will increase the [VPD's] stature in the policing community and provide an invaluable aid to investigations within the Department.
	(emphasis added)

¶ 11      After a period of negotiations, the Board and Detective Inspector Rossmo signed the contract (the "Agreement") on May 6, 1996. It contained the following terms:

*		the position of Detective Inspector was created, a rank equivalent to that of Inspector under the Police Act, R.S.B.C. 1996, c. 367;
*		Detective Inspector Rossmo would receive the same compensation and benefits received by the rank of Inspector covered by the collective agreement between the Board and the Vancouver Police Officers Association ("VPOA");
*		Detective Inspector Rossmo would remain a sworn member of the VPD;
*		the term of the Agreement was from October 16, 1995 to December 31, 2000;
*		the Agreement could be renewed by mutual agreement if such agreement was reached prior to December 31, 1999;
*		if no agreement were reached, Detective Inspector Rossmo's employment would terminate on December 31, 2000 without any further notice;
*		Detective Inspector Rossmo would carry out the duties described in a job description and such duties as the Chief Constable assigned him;
*		Detective Inspector Rossmo could accept assignments from other Police Forces or Law Enforcement Agencies; and
*		Detective Inspector Rossmo's employment could be terminated for just cause at any time.

¶ 12      Detective Inspector Rossmo's job description required him to spend 25% of his time as a resource for the Chief Constable, as requested, and 75% of his time on geographic profiling activities. By 1997, he was receiving the highest level of pay at the Inspector rank.

¶ 13      The VPOA is a certified trade union governing VPD members who hold the rank of Inspector. It negotiates the Inspectors' collective agreement with the Board. All other sworn members of the VPD are governed by a separate collective agreement negotiated by the Vancouver Police Union ("VPU"). After he became a Detective Inspector, Dr. Rossmo ceased paying dues to the VPU. He did not apply to the VPOA to become a member. Hence, during the five-year contract, he belonged to neither organization.

¶ 14      Almost immediately after Detective Inspector Rossmo's appointment, dissension surfaced in the officer ranks. The Officers Mess advised Detective Inspector Rossmo that he was eligible for membership but that the category of his membership was unclear. The Mess asked Chief Canuel whether Detective Inspector Rossmo was entitled to membership and if so, whether he qualified as a Regular member or as a Regular Associate member, a status accorded to civilian members.

¶ 15      The Vancouver Police Sergeants Association also sought "clarification" of Detective Inspector Rossmo's appointment and took the position that "Det.-Insp. Rossmo's position must have the status of "while so employed". In their view, his pay and title recognized his special expertise in geographic profiling, but did not entitle him to the powers normally conferred on an Inspector or a Detective.

¶ 16      Chief Canuel advised the Officers Mess that Detective Inspector Rossmo met the criteria to qualify as a regular member of the Mess and that he anticipated that Detective Inspector Rossmo would be invited to Mess functions. In fact, Rossmo was only accepted as an Associate member.

¶ 17      Chief Canuel retired in June 1997 and Bruce Chambers replaced him two months later. Viewed as "an outsider" whose attempts to decentralize the VPD were largely unsuccessful, Chief Chambers held the position for less than two years, leaving in June 1999. At that time, Terry Blythe became Acting Chief and John Unger became Acting DCC. Blythe and Unger were confirmed as Chief and DCC respectively in March 2000, and in April, DCC Unger replaced DCC McGuiness as Rossmo's direct superior.

¶ 18      Throughout the term of the Agreement, Detective Inspector Rossmo's services were requested and praised by numerous national and international policing agencies. The requesting agency paid all of his travel expenses. His presentations on, and training sessions in, geographic profiling were enthusiastically received locally, nationally, and internationally. Geographic profiling was the subject of extensive media coverage. Detective Inspector Rossmo was active academically, teaching criminology at Simon Fraser University and writing books, articles and academic papers. There is no doubt that Detective Inspector Rossmo's unique expertise greatly enhanced the reputation of the VPD. Detective Inspector Rossmo received a number of national and international awards recognizing his contributions to policing and the VPD was the recipient of several honours as a result of his work.

¶ 19      However, within the VPD there was stiff resistance to utilizing Detective Inspector Rossmo's talents. In January 1999, Rossmo sent a memorandum to the Inspectors in charge of major crime and special investigations, asking them to estimate the number of requests they would have for geographic profiling in the next year. One Inspector returned the form with zeros marked in every category and another Inspector declined to respond at all. That resistance was unwarranted. Rossmo's skills and expertise were under-utilized locally for the types of criminal investigations particularly suited to geographic profiling.

¶ 20      In November 1999, Detective Inspector Rossmo attended an interview with Acting Chief Blythe who expressed his pleasure with Rossmo's work and the international recognition he had brought to the VPD. Blythe asked him to make two presentations on the work of the GPU, one to the SMT and one to the Board.

The decision not to renew the Agreement:

¶ 21      In late November 1999, Alex Muselius, the civilian Director of Human Resources, advised DCC Greer that it was necessary to decide whether to renew the Agreement. Mr. Muselius considered the sole issue to be whether a business case could be made for extending the contract. In his view, the onus was on Detective Inspector Rossmo to make the business case for extension "using a value-for-the-money approach". Mr. Muselius made the following analysis:

	On the cost side there is the hard cost difference between compensation for a Constable and an Inspector (approx. $30,000) in addition to the opportunity cost of having one member unavailable for other duties. On the benefit side we have enhanced criminal/suspect capture and crime reduction as well as prestige to the VPD from a raised profile through the Detective Inspector's activities.
	A cursory analysis seems to suggest that a choice to extend the contract would not be a good business decision. In short, there is little apparent evidence of enhanced policing outcomes. And establishing the extent and durability of prestige is problematic. Nevertheless, a more thorough examination and analysis is indicated.

¶ 22      Mr. Muselius suggested that Detective Inspector Rossmo be asked to make a business case presentation in favour of renewal. If the December 31, 1999 deadline passed, the Agreement could be extended by mutual agreement if a business case were made within a reasonable time.

¶ 23      On December 1, 1999, Detective Inspector Rossmo made his presentation to the SMT. At that time, the Executive Committee consisted of Acting Chief Blythe, DCC McGuiness, Acting Deputy Unger and Acting Deputy Greer. Rossmo felt that Unger was unfriendly to him at that meeting.

¶ 24      Later that day, Detective Inspector Rossmo attended one of the Board's regular meetings and repeated his presentation respecting geographic profiling and the work of the GPU during the previous year. Mayor Owen, Chair of the Board since 1993, testified that he did not recall that presentation as being related to the renewal of the Agreement. The Board was aware that a decision had to be made in that respect but the matter was left with the Chief Constable and the SMT for their review and recommendation.

¶ 25      On December 13, 1999, Mr. Muselius advised Detective Inspector Rossmo by e-mail that he and DCC Greer had been asked to make a recommendation to the SMT on the renewal of the Agreement. Mr. Muselius asked what Detective Inspector Rossmo wanted and what he considered to be the "value-for-the-money considerations." Rossmo's secretary responded that Rossmo would be away until early January 2000.

¶ 26      When Detective Inspector Rossmo met with DCC Greer on January 13, 2000, he said that he wanted "tenure" to allow him to reach retirement age. He also expressed the concern that his services were under-utilized by the VPD and indicated that he wanted the full support of the SMT.

¶ 27      On February 16, 2000, Mr. Muselius forwarded a draft letter of renewal that DCC Greer was prepared to recommend to the Board for approval. That proposal, which was endorsed by every member of the SMT, contained the following terms:

*		The Agreement would be extended by two years to expire December 31, 2002;
*		The SMT would direct all appropriate police units to make maximum reasonable use of the geographic profiling forensic services;
*		The highest priority of the GPU would be the provision of crime resolution services to VPD units; and
*		The SMT would evaluate the contribution of the GPU to "the specific crime resolution needs of the VPD" as at December 31, 2001, and that evaluation would determine whether SMT would recommend a further extension of the Agreement beyond December 31, 2002.

¶ 28      Detective Inspector Rossmo responded with two concerns. First, he wanted another five-year contract because the proposed two-year extension left him 28 months short of his earliest possible retirement date. Second, he had no control over obtaining the requests for geographic profiling services that were necessary to provide crime resolution services to the VPD. He indicated that he would be away until March 2, 2000 and, on his return, he would elaborate on those concerns. On March 17, Rossmo delivered a memorandum to DCC Greer, reiterating his desire for a tenure that would allow him to reach his retirement date, as well as the full support of the SMT.

¶ 29      Mr. Muselius had been hired to develop a competency-based system for transfers and promotions within the VPD that would be transparent and principled. He testified that he was surprised when Rossmo rejected DCC Greer's proposal and requested a contract renewal that would take him to retirement. In Muselius' opinion, Rossmo's counter-proposal contravened the principled approach he was attempting to implement.

¶ 30      No further negotiations took place. In the meantime, the VPD learned of the City's intention to cut either seven VPD positions or $600,000 from the VPD's budget. In mid-April, Inspector Lepard, who was in charge of the Planning and Research Department, was assigned to vigorously oppose the City's proposal. A compromise was effected that resulted in the elimination of 3.5 VPD positions.

¶ 31      On April 28, 2000, Mr. Muselius forwarded DCC Greer a draft of a letter to Rossmo that stated: "due to budgetary considerations the Board has decided that your contract as Detective Inspector in the Geographical Profiling Unit will not be renewed." The letter contemplated that, as of January 1, 2001, Rossmo would revert to his "substantive rank" of Police Constable at the appropriate pay level and he would be "reassigned through the usual posting/ transfer process." Mr. Muselius assumed the decision would have to be approved by the Executive and the Board, but he felt that they should give Rossmo advance notice as a courtesy.

¶ 32      In early May, Detective Inspector Rossmo asked DCC Greer about the progress of his contract renewal. Greer replied that they were considering ending the GPU due to budgetary constraints and that Rossmo would be offered re-employment as a Constable. Rossmo, who viewed such a move as a demotion, indicated he would discuss the issue with his lawyer. Dr. Rossmo testified that he had never rejected the two-year offer. He fully anticipated that his request to continue to retirement at his rank level would be granted.

¶ 33      Although Rossmo had never had any negative dealings with Deputy Greer, he believed the two-year offer could have had "the influence of hands" other than Mr. Muselius and DCC Greer. In his view, then Acting Chief Blythe could have been such an influence. In cross-examination, it was suggested to Dr. Rossmo that if people had wanted "to set Rossmo up", they could simply have not renewed the Agreement at the end of its term. The following exchange took place:

A.		My take on this is that while Terry Blythe was in competition for the chief's position and while the deputies - the acting deputies were in competition for deputy positions, that they were going to be careful not to do anything politically unacceptable or controversial and I think this fits such a mandate, where they could renew my contract, but only for a very short time period.
Q.		And as you say, sir, that is your take on things?
A.		Yes.
Q.		You have no evidence of any kind to point to that conclusion?
A.		Maybe the fact that we are here today, sir.
Q.		You have no evidence do you, sir? I'm sorry?
A.		No.

¶ 34      DCC Greer testified that DCC Unger had not pressed him in any way or suggested cutting the GPU.

¶ 35      Both City Council and the Board must approve the VPD's budget. At its meeting on May 8, 2000, the Board discussed the City's direction to the VPD to cut 3.5 positions. Chief Blythe identified three positions, including geographic profiling, that could be cut. Chief Blythe suggested that purchasing geographic profiling consulting services on an as-needed basis would be a more cost-effective option than retaining the GPU. Mayor Owen testified that "there wasn't a great deal of support for renewing" the Agreement at that time but at least one of the Board members, K. Mottus, opposed the elimination of the GPU. The Board was reluctant to cut any positions until it had reviewed all of the options and resolved to consider the future of the GPU at its next meeting.

¶ 36      On May 31, the Executive Committee met to discuss the proposed budget cuts. They decided that the GPU would not be continued. DCC Unger, as Detective Inspector Rossmo's supervisor, was assigned to deal with the matter. Unger told the Executive Committee he intended to cancel Rossmo's funding for the seminars Rossmo was scheduled to attend before the end of the year.

¶ 37      On June 7, Rossmo's lawyer, Murray Tevlin, wrote to the Board and Chief Blythe suggesting that they enter into negotiations with him to resolve the issue of Detective Inspector Rossmo's contract renewal.

¶ 38      On June 15, DCC Greer reported the status of the contract negotiations to Chief Blythe. In his opinion, the GPU, which cost approximately $700,000 over five years, had successfully introduced the concept of geographic profiling to the international police community. DCC Greer expressed concern about the cost of continuing the programme:

The question for the Vancouver Police Department and the Police Board is to what degree do we wish to continue funding what is essentially an international police program. There have been no definitive applications of geographic profiling in the [VPD] and the Department is facing significant budget issues that require decisions on funding priorities.

¶ 39      DCC Greer's concerns were raised before the Board on June 16, 2000. The Board was advised that Detective Inspector Rossmo, who had been offered the opportunity to return to the force as a Constable, considered that option to be a demotion. The Board was told that the SMT thought otherwise and that the Chief Constable had sought a legal opinion on that issue. The Board resolved to delay their response to Mr. Tevlin until they had the opportunity to review the legal opinion.

¶ 40      On Chief Blythe's instructions, Inspector Holland prepared a proposed report to the Board on June 20, 2000. It outlined the pros and cons of continuing the GPU and recommended that it be discontinued.

¶ 41      On June 21, Inspector Holland advised DCC Carolyn Daley, who had replaced DCC Greer as head of Human Resources in May, that Chief Blythe had asked her to manage the Detective Inspector Rossmo "issue." She was told to meet with DCCs Greer and Unger and Mr. Muselius to obtain the necessary information and documentation. She replied that, for a number of reasons, she would not be able to deal with that matter immediately.

¶ 42      On June 23, 2000, DCC Daley sent an e-mail message to Chief Blythe, DCC Unger and Mr. Muselius, advising that she had been assigned "the challenge of preparing packages for legal opinion and conclusion" of the Detective Inspector Rossmo issue, as well as another matter. She asked each of them to forward a report detailing their dealings with respect to those issues. On June 26, DCC Unger replied: "Alex [Muselius]'s letter to Kim will be sent the first week in July (I have discussed this with Alex). This will coincide with the new Police Board members being appointed." DCC Unger added that he would be meeting with Detective Inspector Rossmo on July 18. On June 27, DCC Daley responded that they should talk about "who's doing what" at the next Executive Committee meeting. Apparently, Chief Blythe was unaware of the e-mails of June 26 and 27.

¶ 43      On June 29, Chief Blythe advised the Board that the Executive Committee agreed the Agreement should not be extended for financial reasons and that a legal opinion had been sought on the issue of "whether elimination of the position would be deemed a demotion." Ms. Mottus again expressed support for continuing Detective Inspector Rossmo's employment. The Board deferred a decision as to whether to extend Rossmo's contract until they had the opportunity to consider DCC Daley's report at the July 26 meeting.

¶ 44      On June 30, the Board replied to Mr. Tevlin, noting that they had asked Chief Blythe to provide background material on the issue for their review before they met with him.

¶ 45      On July 1, Chief Blythe commenced his annual leave. On July 3 or 4, DCC Unger telephoned Chief Blythe at home to discuss whether the letter that Mr. Muselius had drafted in late April should be sent to Rossmo. Chief Blythe advised DCC Unger not to do anything until he had talked to a lawyer. As a result, Unger spoke to Mr. Al Hamilton, the lawyer for the Board.

¶ 46      On July 6, 2000, on the instructions of DCC Unger, Mr. Muselius sent the letter to Detective Inspector Rossmo advising him that his contract was not renewed "due to budgetary considerations" and that he would revert to his substantive rank of Police Constable at the corresponding compensation level. The letter was addressed to "Detective Inspector (W.S.E.) Kim Rossmo." The WSE designation, "While So Employed", is common when members are temporarily acting in a higher rank than their substantive rank (for longer than six months). This was the first time that Rossmo had been addressed by that designation. Chief Blythe and the Board were unaware that the letter had been sent.

¶ 47      DCC Unger testified that he had left a telephone voice message for Mr. Muselius to get in touch with him regarding the draft letter. That contradicts DCC Unger's own note on the draft letter, which reads "00/06/26 - Alex advised to send letter (message left on voice mail)."

¶ 48      The plaintiff submits that because the parties to the Agreement were Detective Inspector Rossmo and the Board (which was considering the issue of the Agreement's extension), DCC Unger had no authority to direct Mr. Muselius to send the letter on behalf of the VPD. Mayor Owen, who has been Chair of the Board since 1993, testified that generally the Board determines policy issues. The Chief Constable and the SMT deal with operational issues, including the employment of individuals below the rank of Deputy Chief Constable. However, because this was a unique case that had received a great deal of media attention, the Board felt it necessary to get involved.

¶ 49      When DCC Unger interviewed Detective Inspector Rossmo on July 18, 2000, he told Rossmo that he could not attend two scheduled international conferences, that his clerical support would be removed, that his office was to be moved, and that his budgetary requests were denied.

¶ 50      On July 18, Mr. Tevlin wrote to the Board, expressing his dismay that the July 6 letter had been sent in the face of their earlier reassurance they would obtain information during July and then discuss the issues with Mr. Tevlin.

¶ 51      On July 19, 2000, DCC Unger wrote a memorandum to Chief Blythe outlining the circumstances surrounding the July 6 letter. He noted that the file had been assigned to him as a result of discussions in the Executive Committee on May 31. He stated that on July 4, Mr. Al Hamilton had given a verbal legal opinion that, unless it was renewed, the Agreement would expire December 31, 2000 and Detective Inspector Rossmo would revert to his pre-contractual position as Constable. DCC Unger described the July 6 letter as one which "outlined the intentions" of the VPD not to renew Rossmo's contract beyond December 31, 2000.

¶ 52      On July 26, the Board met and reviewed the recent documentation relating to Detective Inspector Rossmo. Florence Wong, a Board member, and DCC Unger were appointed to liaise with Al Hamilton.

¶ 53      On July 27, Mayor Owen, as Chair of the Board, wrote to Chief Blythe and DCC Unger, requesting that the Chief Constable submit to the Board a full report on the GPU and on the Rossmo contract discussions and negotiations, together with his recommendations. The Board asked to receive the report before September 11, 2000. On a copy of that memorandum, DCC Unger wrote: "now that the Rossmo matter has been sent for disposition to Mr. Al Hamilton, it would be inappropriate to further respond to the Police Board." Mayor Owen testified that he agreed with that response.

¶ 54      Chief Blythe and DCCs Unger and Greer attended the September 22 Board meeting to review the situation. The minutes reveal the following discussion:

Board Member Bauman raised a concern that the Board was not given an opportunity to debate the merits of the Geographical Profiling Section and work of Mr. Rossmo due to the VPD July 6 letter which was sent without Board knowledge. Board instructions were not followed. She felt that recent media coverage impacted on options available to the Board. DCC Unger explained that upon legal advice that they felt some sort of notice was necessary and that he had been unaware of the correspondence with the Board. The Chief noted the DCC changes and transition, and apologized for the mis-communication and arising situation.

¶ 55      At trial, DCC Unger denied that Ms. Bauman had said "Board instructions were not followed." In all of the circumstances, I have no doubt that those minutes accurately summarize what transpired at the meeting. Mayor Owen testified that he shared Ms. Bauman's concerns. There can be no question that the Board was expecting to review the legal opinion and a background report from DCC Daley before making any decision regarding the GPU.

¶ 56      On October 11, the Board heard submissions from Detective Inspector Rossmo and Mr. Tevlin regarding the contract issues. Rossmo made a presentation to the Board with respect to the geographic profiling concept and the work of the GPU. After Detective Inspector Rossmo and Mr. Tevlin left, the Board discussed the value of the GPU to the VPD, the costs of that programme and the financial constraints under which the VPD was operating. Chief Blythe noted that the GPU had accomplished the goal of getting geographic profiling on the international map but that its benefits did not outweigh the cost to the City.

¶ 57      Chief Blythe testified that the final decision about whether to renew Rossmo's contract was to be made by the Board on the recommendation of the SMT. The minutes record that decision:

Board reconfirms its earlier position that the contract will not be renewed due to financial constraints of local police force - which is not an international or national body.

However, overruling DCC Unger and the SMT, the Board resolved to meet the terms of the Agreement, including "(1) keep office in current location; (2) return Admin. Assistant or provide other support... and (3) approve Fall conference (approx. $4,000)."

¶ 58      Detective Inspector Rossmo was paid until December 31, 2000, the last day of his contract. He received payments of accumulated leave until May 2001 and the balance in a lump sum. He did some work locally for BCIT and the Justice Institute, and on February 21, 2001, he commenced part time employment with the Police Foundation in Washington, D.C. On March 19, 2001, he began full time work with the Police Foundation under a three-year fixed term contract. He earns an annual salary of $125,000 U.S. and benefits. (In comparison, his salary at the VPD was approximately $95,000 Cdn plus benefits.)

¶ 59      Dr. Rossmo's claim for damages includes $16,487.87 for 63 days of lost salary, $183,000 for 3050 accumulated hours of sick leave, $133,000 for the net loss of the benefit of retiring at age 52, and substantial punitive and aggravated damages against both defendants.

Discussion:

¶ 60      The defendants argue that the Agreement achieved its goal of introducing the geographic profiling concept internationally, training geographic profilers in other jurisdictions, and bringing glory to the VPD. They submit that it achieved little in Vancouver's fight against crime and that budgetary constraints militated against the continuation of the GPU.

¶ 61      The plaintiff rejects the suggestion that budgetary considerations underlay the decision not to renew Detective Inspector Rossmo's contract. The "theory" of the plaintiff is illustrated by Mr. Tevlin's letter to Mr. A. Hamilton of August 4, 2000: "It would appear that certain elements within management of the [VPD] either do not recognize Detective Inspector Rossmo's contribution, or are jealous of it because he is highly educated, young and widely recognized for his good work."

¶ 62      The plaintiff denies that financial constraints necessitated the termination of the GPU or his "demotion". He points to the fact that at the relevant time, when 3.5 positions were being cut, 11 officers were promoted to the rank of Inspector (some of whom had joined the force after Dr. Rossmo). However, a number of witnesses described that reorganization, which realigned and eliminated other positions (the ranks of staff-sergeant, corporal, and superintendent), as cost-neutral.

¶ 63      In March 2001, City Council approved an increase in the staffing of 50 sworn positions (20 temporary and 30 new) from 1046 to 1096 members, at an additional cost of approximately $725,000 in 2001 and $2.5 million in 2002. The 30 new positions were for front-line officers, to be placed on the streets of the Downtown Eastside. Inspector Lepard testified that the increase was essential and the force simply could not continue to have its strength cut. Chief Blythe described Inspector Lepard as the first person to have undertaken comprehensive research into staffing and workload requirements.

¶ 64      In fact, the economic value of the GPU had been questioned more than a year before the issue of the renewal of Detective Inspector Rossmo's contract arose. In late 1998, the City was faced with budget cuts from the Province and asked the VPD to cut $1.2 million from its operating budget. A number of budget reduction proposals arose out of a meeting of the "Efficiencies Committee" on December 18, 1998. The VPD was told to eliminate 15 positions for budgetary reasons. Inspector Greer emphasized that the VPD should focus on maintaining front-line policing. He suggested that the GPU would be better funded at the Provincial level and recommended its elimination. At that time, Chief Chambers opposed the suggestion that the GPU be eliminated.

¶ 65      Terry Blythe, who was a DCC at that time, divided the Efficiency Committee's recommendations into two groups: budget reductions that had little or no influence on front-line service, and those that related to core functions. He considered geographic profiling to be in the former group and recommended that the GPU be eliminated and that Rossmo return to the rank of Constable. He suggested that geographic profiling could be utilized through private consultation as needed, or could be funded through the Province.

Is there an "Old Boys Network?"

¶ 66      The plaintiff's lawsuit is founded on the allegation that an "Old Boys Network" wields immense power within the senior ranks of the VPD and never accepted Dr. Rossmo among its ranks. Mr. Tevlin submits that the Board improperly permitted its authority to be usurped by the influential Old Boys Network.

¶ 67      Dr. Rossmo defined the Old Boys Network as a system in which a small number of individuals have a disproportionate amount of power and control. He claims that decisions in the VPD are made or influenced by that group primarily for their own self-betterment rather than for the purpose of meeting the functional needs of the organization. Mr. Tevlin says the Old Boys Network, the core of which consists of eight or ten Inspectors, has the power to refuse promotions to qualified officers and it ousted Chief Chambers, an outsider whom they loathed, and punished his supporters. Sgt. Grant Smith and Inspector Ken Doern both testified that after Chief Chambers left, the officers who had supported him were not treated well by the "old boys."

¶ 68      In October 1999, Inspector Doern was transferred from the Investigations Division to head a new section called Strategic Resource Planning. He was told to terminate his involvement in a number of key committees. In June 2000 Chief Blythe re-assigned him to charitable duties that, in Doern's view, had formerly been assigned to members who were unfit for regular duties. Inspector Doern testified that he felt denigrated by that assignment.

¶ 69      Referring to notes he had kept of the interview, Inspector Doern testified that Chief Blythe told him DCCs Greer, Daley and Unger were unhappy with Doern because of his relationship with Chief Chambers, who had "destroyed the department", and that they were worried he too would destroy the department. At trial, Chief Blythe disagreed with the suggestion that the temporary re-assignment of Doern had anything to do with his loyalty to Chief Chambers. Blythe testified that he felt Doern had failed to meet the challenge Blythe had given him to move Strategic Resource Planning in a new direction. He specifically denied having told Doern that his re-assignment was based on a concern that Doern would destroy the VPD just as Chambers had done.

¶ 70      On July 6, 2000, Inspector Doern spoke to DCC Unger, who told him there had been numerous complaints about his having been seen lunching with Bruce Chambers, and Doern would not be allowed to return to the Investigations Department. Inspector Doern agreed, however, that Unger was personally supportive of his leadership skills and performance. DCC Unger's notes of that meeting indicate that Unger told Doern he was disliked by the members of the Investigations Unit and should change his management style.

¶ 71      Inspector Doern took six weeks of annual leave. On his return in October 2000, he was given responsibility for the Downtown Eastside Special Policing plan, a critical task that clearly recognized Doern's skills and leadership abilities.

¶ 72      Inspector Doern was understandably distressed that the plaintiff had subpoenaed him to testify against DCC Unger:

The matters that we've touched on today are personal matters and they are matters that are labour relations, human resource issues that we try and resolve internally within the department. So now they've become public. There are - there are people who will support Deputy Unger and this will have a severe impact on me for as long as I remain in the department, but also in the social context after. The culture of policing is very strong and this is just devastating.

¶ 73      In cross-examination, Inspector Doern agreed that Dr. Rossmo was one of the officers he had consulted for advice after Doern's "demotion." When asked "so it was through speaking to him that you came to have this unfortunate experience today?" he answered "yes." He has since retired.

¶ 74      Dr. Rossmo testified that the VPD officers fell into three groups: those who were strongly supportive of the GPU and encouraged his work; a core group of about eight or ten Inspectors, including DCC Unger, who were resentful and antagonistic towards him; and a group in the middle.

¶ 75      No-one in the "core group", other than DCC Unger, had any decision-making role with respect to Rossmo's contract renewal. Alex Muselius was a civilian. Rossmo had very little interaction with DCC Daley and he found DCC Greer and Chief Blythe professional in their dealings with him, if not supportive. He considered DCC McGuiness to be a friend. All of those individuals considered a "value for dollars approach" appropriate and recommended the two-year contract extension that Rossmo declined.

¶ 76      Each of the many witnesses who were asked about the existence of an Old Boys Network offered a different definition of the term. Bruce Chambers testified that, after he failed to get the support of the senior officers for his proposals, "the knives were right out on the table", and he subsequently lost the Board's support. His attempts to move towards decentralized community policing were thwarted by an internally focussed SMT that resisted change. He described a rift between a group of progressive officers that included Rossmo and the traditionalists.

¶ 77      On the other hand, DCC Greer and Inspector Beach criticized decisions that were made by Chief Chambers and a few other officers as decisions that "just happened", or were announced without prior discussion.

¶ 78      The VPD has a strictly vertical, quasi-military rank structure of promotion. Predictably, such a structure leads to a particular culture that may be threatened by, or resentful of, unusual arrangements such as that encompassed by the Agreement. It is not surprising that some senior officers resented the fact that Dr. Rossmo, a Constable, was "suddenly" eligible for the pay and perks of an Inspector.

¶ 79      At trial, Dr. Rossmo rejected a suggestion that the negative reaction to his position resulted from the fact he "pole-vaulted over three ranks in the police force to get to be a Detective-Inspector." He was adamant that "they reacted negatively because they were immature and unprofessional."

¶ 80      Inspector Lepard testified that he was not aware of any Old Boys Network that was responsible for making important decisions in the VPD. In his opinion, the senior officers who did not respect Rossmo and the GPU were in the minority.

Did the Board wrongfully dismiss Dr. Rossmo?

¶ 81      Mr. Tevlin submits that the VPD was legally obliged to retain Dr. Rossmo at the Inspector level and reassign him as an Inspector to another department if they discontinued the GPU. However, several officers testified that Inspectors must be qualified to act as the Duty Officer or do "Car 10 Duty". Inspectors achieve that rank as a result of a selection process that assesses the breadth of their experience in various positions and departments, as well as their ability to supervise the police officers under their command. Inspector Lepard, who is a friend of Rossmo's and who always supported Rossmo and the GPU, testified that Dr. Rossmo lacks the qualifications to be an Inspector in any department except perhaps the Department of Planning and Research, a position that Inspector Lepard presently holds. In that event, Rossmo would be the only Inspector in the VPD who lacked the broad administrative and operational experience necessary to act as duty officer and perform Car 10 duties.

¶ 82      The plaintiff relies upon the principle that a sworn police officer is a holder of a public office who cannot be dismissed without cause. The ordinary common law principles of master and servant do not apply, and the provisions of the Police Act govern all issues of discipline, demotion and termination. The defendants do not disagree; however, they say that Rossmo was neither demoted nor dismissed. The defendants' position is that Rossmo agreed to the terms of a five-year contract that was not renewed and at the end of the term of the Agreement he remained a sworn police officer but declined to revert to his pre-contractual substantive rank of Constable. Although Mr. Tevlin submits that neither the Board nor Dr. Rossmo had authority to enter into a fixed term contract, he seeks substantial damages for its alleged breach by the Board.

¶ 83      The plaintiff's theory rests on the premise that Dr. Rossmo was "promoted" from the rank of Constable to that of Detective Inspector, and that a return to the rank of Constable would have been a demotion. Mr. Tevlin submits that although the Board could decide not to fund the GPU after five years, they were required to reassign Rossmo as an Inspector in another department. This analysis is antithetical to the actual promotion structure of the VPD. Other police forces may embrace lateral promotions based on education and competence; the VPD does not. At the material time, a sworn officer commenced as a Constable and progressed through the ranks of Corporal, Sergeant, and Staff Sergeant before reaching the rank of Inspector and then Superintendent. Officers progressed at different speeds depending on their ambition, competence, skill, and success in competitions held from time to time.

¶ 84      Several of the Officers who testified had attained University degrees while they were full time members of the VPD and progressed through the ranks. Inspector Lepard, who joined the VPD in 1981 and became an Inspector in 2000, has a degree in criminology. DCC Greer completed his B.A. after joining the VPD in 1972. He became an Inspector in 1995 and subsequently obtained an MBA in 1998. Inspector Rich obtained a law degree in 1979 and was called to the bar in 1980. He then joined the VPD as a Constable and, after assignments in numerous areas and promotions, became an Inspector in 2000.

¶ 85      In my view, the rank of Detective Inspector was not a substantive rank and it was never understood as such. The parties agreed that it was necessary to give Dr. Rossmo the stature that accompanied a rank sufficiently high to enable him to interact effectively with senior officers at Scotland Yard, the FBI, and other national and international police agencies. The parties also agreed that his compensation should be commensurate with the nature of his unique expertise and skills.

¶ 86      Dr. Rossmo was not "promoted" to Detective Inspector. The Board and the VPD assiduously avoided categorizing Rossmo's designation as a promotion, either in the Agreement or in their description of the terms of the Agreement. Further, there is no merit to the plaintiff's characterization of Dr. Rossmo as being "enticed into a fixed term contract."

¶ 87      Mr. Tevlin submits that insofar as the Agreement contemplated the termination of Dr. Rossmo's employment at the end of the term, it was void and unenforceable as being against public policy. He relies on a number of cases: Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, [1979] 1 S.C.R. 311; Ref re Constitutional Questions Act (Ontario) (1957), 7 D.L.R. (2d) 222 (Ont. C.A.); Brown v. Waterloo Regional Board of Commissioners of Police (1982), 136 D.L.R. (3d) 49 (Ont. H.C.J.); Mahood v. Hamilton-Wentworth Regional Board of Police Commissioners (1977), 74 D.L.R. (3d) 513 (Ont. C.A.); Pembroke (City) Police Services Board v. Kidder (1995), 123 D.L.R. (4th) 596 (Ont. Gen Div.); and Re Carpenter and Vancouver Police Board (1985), 18 D.L.R. (4th) 585 (B.C.C.A.). Mr. Tevlin submits that those cases support the plaintiff's proposition that a five-year fixed term contract for a police officer is against public policy and, further, the Board's "termination" of Rossmo was against public policy.

¶ 88      The plaintiff relies heavily on Pembroke, a decision of the Ontario Court (General Division), that deals with the statutory regime in Ontario and is therefore of limited application. Further, Pembroke is distinguishable on its facts and of little relevance to the issues in this case. In Pembroke the Court considered a police chief's fixed term contract of employment that allowed either party to terminate the contract on thirty days' notice. The Court decided that such short notice was against public policy and that clause could not be enforced.

¶ 89      Those public policy considerations are not applicable in this case. Detective Inspector Rossmo's position was not comparable to the unique status of a Chief Constable, who requires the security of tenure necessary to guarantee his or her independence.

¶ 90      In any event, at p. 606, the Court emphasized that it was the early termination clause, and not the fixed term contract itself, that was contrary to public policy:

...I do not believe that public policy or common sense require me to hold that an agreement between a local board and a chief, that the latter will fulfil that public office for a term of 10 years is inconsistent with the Police Services Act and ultra vires the municipal authority.

¶ 91      The defendants cite Chambly (City) v. Gagnon, [1997] A.Q. No. 1196 (C.A.), rev'ing [1995] A.Q. No. 1196 (Que. S.C.) rev'd [1999] 1 S.C.R. 8. In that case, the Municipal Council of the City of Chambly had authorized the hiring of Mr. Gagnon as police chief for a period of five years. The agreement confirmed the hiring "for a period not exceeding five years from the date of signing" and did not contain a renewal clause. It provided that Gagnon could terminate the contract at any time with six months notice. The Council voted not to renew the agreement beyond its five-year term. The Court of Quebec held that the City's decision not to sign a new contract constituted a "dismissal" and ordered it to reinstate Gagnon as Police Chief. The Quebec Superior Court overturned that decision, finding that non-renewal of a fixed term contract did not constitute a dismissal. Bishop J. recognized the policy embraced by the Police Act to ensure the stability of the police force by protecting the Chief of Police and his senior officers from any undue influence by the Municipal Council. However, he noted at paras 74 and 75:

	... if the City and the Chief of Police voluntarily sign a contract that provides, in their mutual interest, for the hiring of the latter for a fixed term, the Council and officials cannot interfere in the administration of the police force by its Chief before the expiry of the term. The contract between the parties grants no right to the City to terminate the contract before the term has expired.
	It goes without saying that if the City acts in bad faith and sets a very short term for the contract with a view to interfering in the administration of the police force, and if there is evidence that there is truly a dismissal, the Court of Quebec will be competent, under the terms of article 79, to hear the appeal.

¶ 92      The Quebec Court of Appeal allowed Gagnon's appeal, interpreting the purpose of the Police Act as follows, at para. 20:

The expiration of the contract of agreement of the chief of police is a sword of Damocles that ill accommodates the independence desired. The closer it gets the thinner the rope becomes and the blade sharper. There are strong odds that a complacency as culpable as it is understandable will soon come to the aid of the mayor's son who persists in running red lights! It is precisely this type of situation that the legislature wanted to extenuate.

¶ 93      The Supreme Court of Canada allowed a further appeal from the Quebec Court of Appeal and restored the judgment of Bishop, J. Gonthier J., for the Court, stated at p. 9:

In this case there was no dismissal since the City did not carry out any act which deprived the respondent of his office or post; his post as chief of police ended owing to the expiry of the fixed term set out in his contract of employment without a new contract being entered into.

¶ 94      The plaintiff points out that Chambly was distinguished in Ceccol v. Ontario Gymnastic Federation (2001), 11 C.C.E.L. (3d) 167 (Ont. C.A.) on the basis that in Chambly, the contract was for a single fixed term and contained no clause dealing with renewal. In Ceccol, the plaintiff's employment had been governed by 15 one-year contracts that each contained similar terms. The term of each contract was for a 12-month period "unless sooner terminated or extended as hereinafter provided." The contract provided: "Subject to acceptable performance reviews, this Agreement is subject to renewal, upon the consent of both parties as to terms and conditions." The trial judge concluded that, in the circumstances, the plaintiff was employed on an indefinite term basis, not a fixed term basis, and that she was entitled to reasonable notice. There, each contract contemplated automatic renewal based on acceptable performance reviews, and the parties' intentions and conduct supported the conclusion that the plaintiff's employment was one of indefinite hire.

¶ 95      MacPherson J.A., for the Court, upholding the trial judgment, noted that a fundamental common law principle in employment law is that a contract of employment for an indefinite period is terminable only by reasonable notice. That principle does not apply to fixed term contracts. He stated at para 1:

An employee whose contract is not renewed at the conclusion of a fixed term is not dismissed or terminated; rather her employment simply ceases in accordance with the terms of the contract: see Chambly....

¶ 96      In my view, the principles and public policy considerations underlying the analysis of the contract in Chambly are analogous to those in this case and are not limited to cases arising in Quebec. Neither the language of the Agreement nor the circumstances of this case provide any support for the conclusion that this was an indefinite term contract subject to acceptable performance, such as that in Ceccol.

¶ 97      In Lund v. Estevan (City) Police Commissioners, [1996] 9 W.W.R. 440 (Sask. C.A.), the Court held that, other than a probationary member who is employed at pleasure, a police officer can only be dismissed under the provisions of the Police Act, or by contract. The Court noted at para. 33 that, as a matter of law, it was open to the parties to agree on employment of limited duration by contract.

¶ 98      In conclusion, I find that the Board neither "promoted" Kim Rossmo to the substantive rank of Inspector nor "demoted" him at the conclusion of the Agreement. The clear wording of the contract reflected the intention of the Board not to promote him from Constable to Inspector:

*		The position was for a five-year term;
*		the title "Detective Inspector" was outside the VPD's rank structure;
*		the position was also outside of the collective agreement process and required a term contract. Rossmo ceased to be a member of the VPU and he did not become a member of the VPOA; and
*		either party could decline to renew the Agreement after the expiry of the term.

¶ 99      Dr. Rossmo's employment was not terminated and he was neither dismissed nor demoted. The Agreement expired without renewal. Dr. Rossmo was offered, and rejected, a two-year extension of the Agreement. He declined to return to his pre-Agreement position as Constable. There was never any suggestion by the Board or the VPD that his employment as a sworn Constable would terminate at the end of the Agreement. The Board was not obligated to either maintain the GPU at the end of the five-year term or to reassign Rossmo to another position as an Inspector.

¶ 100      The policy issues that arise in the cases cited by Mr. Tevlin do not arise in this case. Rossmo was not a police chief, nor was he in a position that required independence from the Board in order to perform his functions without fear or favour. He was engaged to develop and promote geographic profiling as a new policing tool for the policing community. He required a five-year term to adequately develop that programme. The GPU was a unique experiment by the VPD that, from its inception, was widely unpopular within the officer ranks. It was perceived as deploying scarce resources for the benefit of the international police environment rather than providing an observable effect on local policing. The five-year term of the Agreement was an integral and acceptable term of the contract, desired by both parties for their own reasons.

Did DCC Unger induce a breach of contract or interfere with the contractual relations between the Board and Rossmo?

¶ 101      Dr. Rossmo asserts that DCC Unger intentionally and maliciously interfered with his employment "by firing him the first chance he got." In his pleadings, Rossmo alleged that DCC Unger caused the Board to breach the Agreement, interfered with Rossmo's contractual rights, conspired with others to damage Rossmo's reputation, defamed him, and purposely acted to humiliate him and cause him mental distress. The conspiracy and defamation allegations were not pursued.

¶ 102      DCC Unger denied that he felt any ill will towards Dr. Rossmo. He testified that he considered his relationship with Rossmo cordial and professional and was shocked and dismayed when he learned that he was a defendant in this lawsuit. On the other hand, Dr. Rossmo testified that he did not like DCC Unger and did not like having to work for him. He described Unger as a coward and a bully.

¶ 103      Before June 1999, Rossmo had little to do with DCC Unger. Prior to the inception of the GPU, Constable Rossmo had been in Unger's division but the two men were separated by three ranks. In 1993, Inspector Unger had discretely resolved a problem that arose from a complaint by a female RCMP member with whom Rossmo had been personally involved. In 1994, a disciplinary issue arose when Rossmo appeared on TV to discuss a police issue while he was operating in an undercover capacity. Inspector Unger told Rossmo that all previous approvals he had received for media releases were rescinded, and that he could not give further interviews without the written consent of the Chief Constable. Dr. Rossmo took the position that the order was illegal. The VPU subsequently obtained a legal opinion that proved Dr. Rossmo correct.

¶ 104      At the same time, DCC Unger wrote a memo recommending that Dr. Rossmo be allowed to continue his geographic profiling work and, in 1995, he supported Chief Canuel's proposal to establish the GPU.

¶ 105      In December 1999, Acting DCC Unger (WSE) became involved in the Executive Committee's discussions regarding the issue of Rossmo's contract renewal. He supported the February 2000 proposal that Rossmo be offered a two-year renewal of his contract. In May 2000, the Executive Committee assigned Unger to deal with the issue of Rossmo's contract renewal.

¶ 106      Dr. Rossmo complained that after he became a Detective Inspector, he was subjected to numerous slights and insults by a core group of the Old Boys Network. However, the only incident he recalled involving DCC Unger concerned an interdivisional meeting that Unger chaired. The location of the meeting had been changed and Rossmo had difficulty finding it. When Rossmo arrived ten minutes late, DCC Unger apparently made a negative comment about Rossmo being late.

¶ 107      Sergeant Grant Smith, who retired in 2001 after thirty-one years of service with the VPD, but was still employed when he testified, related another incident that took place in the police cafeteria. Smith said jokingly that he was confused about Rossmo's appointment and asked DCC Unger whether they should call Dr. Rossmo "Dr Detective Inspector" or "Detective Inspector Dr." Sgt. Smith testified that DCC Unger furiously retorted that Dr. Rossmo would never be an Officer of the VPD or a member of the Officers Mess. At trial, DCC Unger denied that he had said that and, when pressed, called Sgt. Smith a liar. I prefer Smith's version of events. Sergeant Smith, who had no reason to fabricate such a story, gave his evidence in an honest, forthright manner, without embellishment. DCC Unger, whose actions in July 2000 were particularly inappropriate, was unconvincing in his denial that he had an animus towards Dr. Rossmo. However, DCC Unger was only one of several senior officers who apparently resented Rossmo's appointment as Detective Inspector.

¶ 108      Dr. Rossmo testified that his belief that DCC Unger "did his best to sabotage the renewal of my agreement" arose from the following facts:

*		in his annual interview with Chief Chambers in December 1997, Unger said that the Officers felt that Rossmo's appointment "diminished" the Inspector rank and his appointment had been a mistake by Chief Canuel and the Board;
*		the following year, Unger told Chief Chambers that the Rossmo "issue" (his status with respect to the VPOA) remained one of the burning issues with some of the Officers in the department. Unger reiterated that the Officers wanted to clarify Rossmo's duties and responsibilities as Detective Inspector;
*		Unger directed Mr. Muselius to send the July 6, 2000 letter of termination and waited for Chief Blythe to go on vacation before doing so;
*		Unger wrested the task of dealing with the contract renewal issue from DCC Daley who had been assigned to investigate and report on the matter;
*		Unger waited until two of Rossmo's supporters resigned from the Board and ignored the Board's desire to obtain a legal opinion and background report, before determining whether to renew the plaintiff's contract;
*		Unger wrote a note to the Mayor declining a request to report to the Board; and
*		on July 18, Unger attempted to take away Rossmo's administrative and travel perks.

¶ 109      In response, the defendants point to other facts that were established in the evidence:

*		DCC Greer and Mr. Muselius raised the "value for money" issue long before DCC Unger became involved;
*		Mr. Muselius had drafted the July 6 termination letter in April without DCC Unger's involvement;
*		Mr. Muselius testified that he inserted the designation WSE in the July 6 letter because it reflected his view of the unique contractual arrangement. There was no doubt in his mind that Rossmo did not hold the substantive rank of Inspector. He was unaware that either Chief Blythe or DCC Unger had any animus towards Rossmo;
*		numerous officers, including DCC Greer, Chief Blythe, and Inspector Holland, had previously recommended the elimination of the GPU for budgetary reasons;
*		the Board members were very unhappy when they learned that DCC Unger had sent the letter of July 6 and invited Mr. Tevlin and Dr. Rossmo to make a presentation to them as to why continuing the Agreement would be good value for the money; and
*		in October 2000, the Board considered the VPD's recommendations but made an independent decision not to renew the Agreement.

¶ 110      Prior to the litigation, Dr. Rossmo was unaware of many of those facts. Nevertheless, it remains his view that DCC Unger did his best to sabotage the renewal of the Agreement.

¶ 111      In order to succeed in a claim for interference with contractual rights or inducing a breach of contract, the plaintiff must establish the following elements:

*		a contract existed between the parties;
*		DCC Unger had knowledge of its terms;
*		DCC Unger procured a breach of that contract;
*		wrongful interference; and
*		Rossmo suffered damages as a result.

(See: Cantelon v. Industrial Wood and Allied Workers of Canada, Local 1-71, [1999] B.C.J. No. 1620 at para. 80 (S.C.); Walker v. British Columbia (College of Dental Surgeons), [1997] B.C.J. No. 433 at para. 117 (S.C.); Campbell v. Wellfund Audio-Visual Ltd. (1995), 14 C.C.E.L. (2d) 240 at para. 110 (B.C.S.C.); Potter v. Rowe, [1990] B.C.J. No. 2012 at para. 54 (S.C.).)

¶ 112     McLachlin J. articulated the test for intentional infliction of mental suffering in Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200 (S.C.). In this case, Dr. Rossmo must prove:

*		flagrant and extreme conduct by DCC Unger;
*		a calculated intention by DCC Unger to cause mental damages of a very serious kind; and
*		actual physical harm in the form of a visible and provable illness resulting from that conduct.

¶ 113      There is no question that a number of DCC Unger's actions were inappropriate. In June, he challenged DCC Daley's authority to prepare a report on "the Rossmo issue." Instead of providing her with the information she requested, he simply advised her that the letter Mr. Muselius had drafted would be sent to Rossmo in early July to coincide with the appointment of the new Board members. In spite of DCC Unger's denial, the only inference to be drawn from the proposed timing is that Unger believed the resignations of Ms. Mottus and Mr. Pozer, vocal supporters of Rossmo, would reduce the Board's resistance to the SMT's recommendation against renewing Rossmo's contract.

¶ 114      I cannot accept DCC Unger's explanation that he was unaware that the Board was waiting for a report from DCC Daley, which it would discuss at its meeting of July 26. Everyone on the SMT knew the Board had delayed its response to Rossmo's lawyer until it had the opportunity to consider the legal opinion that had been sought, as well as additional background information on the contractual issue and the GPU. In spite of that knowledge, while he was Acting Chief and during Chief Blythe's absence, DCC Unger instructed Mr. Muselius to send the July 6 letter. The Board members understandably expressed their displeasure in September when they learned that the letter had been sent without their knowledge or approval.

¶ 115      It is not surprising that Rossmo felt that Unger was "yanking his chain" during the interview of July 18 when DCC Unger purported to remove several "perks" to which Detective Inspector Rossmo was entitled under the terms of the Agreement.

¶ 116      However, none of Dr. Rossmo's complaints against DCC Unger constitute a viable tortious claim. The Agreement was not breached. The Board's decision-making authority was not usurped by Unger's actions and it subsequently considered the arguments for and against renewing Rossmo's contract and exercised its judgment independently. It was appropriate for the Board to follow the VPD's recommendations with respect to operational matters and the SMT had determined the GPU should be eliminated for budgetary reasons well before July 6. The Board reinstated the contractual benefits that Unger improperly removed. The plaintiff has failed to establish the necessary elements to succeed in his claim for interference with contractual rights or inducing a breach of contract.

¶ 117      Dr. Rossmo did not complain that he suffered mental distress or physical illness as a result of DCC Unger's actions. Without proof of damage, the plaintiff cannot succeed in his claim for intentional infliction of mental suffering.

Conclusion:

¶ 118     The plaintiff was neither demoted nor dismissed. The parties entered into an Agreement with a five-year term that ran its course. As a result of his excellent work in the GPU and his unique skills, Dr. Rossmo increased his national and international reputation as a geographic profiler. Dr. Rossmo rejected the defendants' offer of a two-year contract extension. The defendants had no obligation to place him in a post-contractual Inspector's position to accommodate his desire to reach his retirement date as an Inspector. Understandably, Rossmo chose not to return to his substantive rank as Constable. He had no difficulty obtaining a new contractual position at a salary approximately twice that which he received under the terms of the Agreement.

¶ 119      I reject the plaintiff's assertion that the Board allowed itself "to be misled [and] bullied by the Old Boys within the VPD." The Board did not permit the SMT to pre-empt and usurp its role and responsibility to the public.

¶ 120      In my opinion, neither the Board nor the VPD were obliged to justify their decision not to renew the Agreement. Nevertheless, the conclusion that the GPU was not delivering sufficient value for the money spent was a reasonable one based on budgetary restraints and the emphasis placed on "front-line" policing. Whether or not their decision was "short-sighted", as the plaintiff suggests, is not relevant to the issue of whether Dr. Rossmo was wrongfully dismissed.

¶ 121      While DCC Unger's actions in July 2000 were inappropriate, they fall short of conduct that can be characterized as tortious. However, his actions are deserving of judicial rebuke and although the claim against Unger is dismissed, I would deprive him of his costs against the plaintiff.

¶ 122      I conclude, parenthetically, that it was extremely unfortunate that the plaintiff required Sergeant Smith and Inspector Doern to testify. It was obviously a painful experience for both of them. I found them to be truthful witnesses. However, their evidence was more relevant to the plaintiff's apparent desire to embarrass the VPD than to a determination of the legal issues in this case.

¶ 123      The plaintiff's claims are dismissed as against both defendants, with costs to the Board.

ALLAN J.