Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69
Estate of Manish Odhavji, deceased, Pramod Odhavji,
Bharti Odhavji and Rahul Odhavji Appellants
(Plaintiffs)
v.
Detective Martin Woodhouse, Detective Constable Philip Gerrits,
Officer John Doe, Officer Jane Doe, Metropolitan Toronto
Chief of Police David Boothby, Metropolitan Toronto Police
Services Board and Her Majesty The Queen
in Right of Ontario Respondents (Defendants)
and between
Metropolitan Toronto Chief of Police David Boothby Appellant on cross-appeal
v.
Estate of Manish Odhavji, deceased, Pramod Odhavji,
Bharti Odhavji and Rahul Odhavji Respondents
on cross-appeal
and
Attorney General of Canada, Attorney General of
British Columbia, Canadian Civil Liberties Association,
Urban Alliance on Race Relations, African Canadian
Legal Clinic, Mental Health Legal Committee,
Association in Defence of the Wrongfully Convicted and
Innocence Project of Osgoode Hall Law School Interveners
Indexed as: Odhavji Estate v. Woodhouse
Neutral citation: 2003 SCC 69.
File No.: 28425.
2003: February 17; 2003: December 5.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major,
Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for ontario
Practice — Motion to strike — Police officers
involved in fatal shooting —
Actions brought by estate and family of victim — Statement of claim
alleging misfeasance in public office against police officers and chief of
police and negligence against chief of police, police services board and
province — Actions based on failure of police officers to cooperate in SIU
investigation — Whether portions of statement of claim should be struck out as
disclosing no reasonable cause of action — Rules of Civil Procedure, R.R.O.
1990, Reg. 194, r. 21.01(1)(b).
Torts — Tort of misfeasance in public office —
Chief of police and police officers — Victim killed by police — Police officers
involved in shooting not complying with statutory duty to cooperate with SIU
investigation — Plaintiffs bringing actions in misfeasance in public office
against police officers and chief of police — Whether tort of misfeasance in
public office can arise from misconduct involving breaches of statutory duty —
Whether tort limited to unlawful exercises of statutory or prerogative powers.
Torts — Negligence — Duty of care — Victim killed
by police — Police officers involved in shooting not complying with statutory
duty to cooperate with SIU investigation — Plaintiffs bringing actions in
negligence against chief of police, police services board and province —
Whether they owed plaintiffs duty to take reasonable care to ensure that police
officers cooperated with investigation.
Costs — Court of Appeal’s costs award — Plaintiffs
submitting that they are public interest litigants and should not have been
required to pay costs — Actions involving public authorities and raising issues
of public interest insufficient to alter essential nature of litigation —
Plaintiffs not falling within definition of public interest litigants — No
clear and compelling reasons to interfere with Court of Appeal’s decision to
award costs in accordance with usual rule that successful party is entitled to
costs.
O was fatally shot by police officers. The Special
Investigation Unit (“SIU”) began an investigation. The police officers
involved in the incident did not comply with SIU requests that they remain
segregated, that they attend interviews on the same day as the shooting, and
that they provide shift notes, on-duty clothing, and blood samples in a timely
manner. Under s. 113(9) of the Ontario Police Services Act, members of
the force are under a statutory obligation to cooperate with SIU investigations
and, under s. 41(1), a chief of police is required to ensure that members of
the force carry out their duties in accordance with the provisions of the Act.
The SIU cleared the officers of any wrongdoing. O’s estate and family commenced
a variety of actions. The statement of claim alleged that the lack of a
thorough investigation into the shooting incident had caused them to suffer
mental distress, anger, depression and anxiety. They claimed that the
officers’ failure to cooperate with the SIU gave rise to actions for
misfeasance in a public office against the officers and the Chief of Police,
and to actions for negligence against the Chief, the Metropolitan Toronto
Police Services Board, and the Province. The defendants brought motions under
rule 21.01(1)(b) of the Ontario Rules of Civil Procedure to strike out
the claims on the ground that they disclose no reasonable cause of action. The
motions judge and the Court of Appeal struck out portions of the statement of
claim. In this Court, the plaintiffs appeal against the Court of Appeal’s
decision to strike the claims for misfeasance in a public office against the
officers and the Chief, and the claims for negligence against the Board and the
Province. The Chief cross‑appeals against the Court of Appeal’s decision
to allow an action for negligence against him to proceed.
Held: The appeal
should be allowed in part and the cross-appeal dismissed. The actions in
misfeasance in a public office against the police officers and the Chief and
the action in negligence against the Chief should be allowed to proceed. The
actions in negligence against the Board and the Province should be struck from
the statement of claim.
Under rule 21.01(1)(b), a court may strike out a
statement of claim for disclosing no reasonable cause of action when it is
plain and obvious that the action is certain to fail because the statement of
claim contains a radical defect. In this case, if the facts of the motion to
strike are taken as pleaded, it is not plain and obvious that the actions for
misfeasance in a public office against the police officers and the Chief must
fail.
The failure of a public officer to perform a statutory
duty can constitute misfeasance in a public office. Misfeasance is not limited
to unlawful exercises of statutory or prerogative powers. It is an intentional
tort distinguished by (1) deliberate, unlawful conduct in the exercise of
public functions; and (2) awareness that the conduct is unlawful and likely to
injure the plaintiff. The requirement that the defendant must have been
aware that his or her unlawful conduct would harm the plaintiff establishes the
required nexus between the parties. A plaintiff must also prove the
requirements common to all torts, specifically, that the tortious conduct was
the legal cause of his or her injuries, and that the injuries suffered are
compensable in tort law.
Here, the statement of claim pleads each of the
constituent elements of the tort. The officers’ alleged failure to cooperate
with the SIU investigation and the Chief’s alleged failure to ensure that they
did cooperate both constitute unlawful breaches of statutory duties under the Police
Services Act. The allegation that the officers’ acts and omissions
“represented intentional breaches of their legal duties as police officers”
satisfies the requirement that the officers were aware that their conduct was
unlawful and that it was intentional and deliberate. The allegation that the
Chief deliberately failed to segregate the officers satisfies the requirement
that he intentionally breached his legal obligation to ensure compliance with
the Police Services Act. However, the same cannot be said of his alleged
failures to ensure that the officers produced timely and complete notes,
attended interviews, and provided accurate and complete accounts. A mere
failure to discharge obligations of an office cannot constitute misfeasance in
a public office and the plaintiffs must prove the failures were deliberate.
The allegation that the officers and the Chief “ought to have known” that their
misconduct would cause the plaintiffs to suffer must be struck from the
statement of claim because misfeasance in a public office is an intentional
tort requiring subjective awareness that harm to the plaintiff is a likely
consequence of the alleged misconduct. Lastly, at the pleadings stage, it is
sufficient with respect to damages that the statement of claim alleges mental
distress, anger, depression and anxiety as a consequence of the alleged misconduct,
but the plaintiffs will have to prove at trial that the alleged misconduct
caused anxiety or depression of sufficient magnitude to warrant compensation.
To succeed with their actions in negligence against
the Chief, the Board, and the Province, the plaintiffs must first establish
that these defendants owed the plaintiffs a duty to take reasonable care to
ensure that the police officers cooperated with the SIU investigation. To do
so, the plaintiffs must demonstrate that: (1) the harm complained of is a
reasonably foreseeable consequence of the alleged breach; (2) there is
sufficient proximity between the parties that it would not be unjust or unfair
to impose a duty of care on the defendants; and (3) there exist no policy
reasons to negative or otherwise restrict that duty.
The circumstances of this case raise a prima facie duty
of care owed by the Chief to the plaintiffs. First, it is reasonably
foreseeable that the officers’ failure to cooperate with the SIU investigation
would harm the plaintiffs. As the Chief was responsible for ensuring that
cooperation, it is reasonably foreseeable that his failure to do so would harm
the plaintiffs. Second, a finding of proximity is supported by the relatively
direct causal link between the alleged misconduct — negligent supervision — and
the complained of harm, and by the fact that members of the public reasonably
expect a chief of police to be mindful of the injuries that might arise as a
consequence of police misconduct. The public expectation is consistent with
the statutory obligations the Police Services Act imposes on the Chief.
No broad policy considerations exist that ought to negative the prima facie obligation
of the Chief to prevent the misconduct. With respect to damages, the same
principles set out in the context of the actions in misfeasance in a public
office are applicable.
The relationship between the plaintiffs and the Board
and the Province, however, are not such that a duty of care may rightly be
imposed. The Board is not under a private law duty to ensure that police
officers, as a matter of general practice, cooperate with the SIU. There is no
close causal connection between the misconduct alleged against the Board and
the alleged harm. The Board does not supervise officers and is not involved in
their day‑to‑day conduct. This weakens substantially the nexus
between the Board and members of the public injured as a consequence of police
misconduct. Further, the Board has no statutory obligation to ensure that
police officers cooperate with the SIU. Courts should be loath to interfere
with the Board’s broad discretion to determine what objectives and priorities
to pursue or what policies to enact, and a decision not to enact additional
policies or training procedures for the purpose of ensuring cooperation under
s. 113(9) does not constitute a breach of its obligation to provide adequate
and effective police services.
Similarly, the Province does not have a private law
obligation to institute policies and training procedures for the purpose of
ensuring that police officers, as a matter of general policy, cooperate with
the SIU. There is insufficient proximity between the parties to conclude that
the Province is under a private law obligation to ensure that members of the
force comply with an SIU investigation. The Province is too far removed from
the day-to-day conduct of members of the force and the Solicitor General is not
under a statutory obligation to ensure that police officers cooperate with the SIU.
The Solicitor General’s decision not to enact additional policies or training
procedures in respect of s. 113(9) does not constitute a breach of his duty to
ensure that the Board provides adequate and effective police services.
Cases Cited
Applied: Anns v.
Merton London Borough Council, [1978] A.C. 728;
explained: R. v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205;
referred to: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Attorney
General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Ashby
v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126; Roncarelli v. Duplessis,
[1959] S.C.R. 121; Powder Mountain Resorts Ltd. v. British Columbia (2001),
94 B.C.L.R. (3d) 14, 2001 BCCA 619; Alberta (Minister of Public Works, Supply
and Services) v. Nilsson (2002), 220 D.L.R. (4th) 474, 2002 ABCA 283, aff’g
(1999), 70 Alta. L.R. (3d) 267, 1999 ABQB 440; Northern Territory of
Australia v. Mengel (1995), 129 A.L.R. 1; Henly v. Mayor of Lyme (1828),
5 Bing. 91, 130 E.R. 995; Garrett v. Attorney-General, [1997] 2 N.Z.L.R.
332; Three Rivers District Council v. Bank of England (No. 3), [2000] 2
W.L.R. 1220; Granite Power Corp. v. Ontario, [2002] O.J. No. 2188
(QL); R. v. Dytham, [1979] Q.B. 722; Uni-Jet Industrial Pipe Ltd. v.
Canada (Attorney General) (2001), 156 Man. R. (2d) 14, 2001 MBCA 40; Guay
v. Sun Publishing Co., [1953] 2 S.C.R. 216; Frame v. Smith, [1987] 2
S.C.R. 99; Le Lievre v. Gould, [1893] 1 Q.B. 491; Kamloops (City of)
v. Nielsen, [1984] 2 S.C.R. 2; B.D.C. Ltd. v. Hofstrand Farms Ltd.,
[1986] 1 S.C.R. 228; Canadian National Railway Co. v. Norsk Pacific
Steamship Co., [1992] 1 S.C.R. 1021; London Drugs Ltd. v. Kuehne &
Nagel International Ltd., [1992] 3 S.C.R. 299; Winnipeg Condominium
Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85; Cooper
v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79; Donoghue v. Stevenson,
[1932] A.C. 562; Hercules Managements Ltd. v. Ernst & Young, [1997]
2 S.C.R. 165; Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860, 2000
SCC 60; B. (R.) v. Children’s Aid Society of Metropolitan Toronto,
[1995] 1 S.C.R. 315.
Statutes and Regulations Cited
Police Services Act, R.S.O. 1990, c. P.15, ss. 3(2), 31(1), 41(1), 113(1), (9).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 21.01(1)(b), 57.01(1).
Rules of Court, B.C. Reg. 221/90, r. 19(24)(a).
Authors Cited
Fleming, John G. The Law of
Torts, 9th ed. Sydney: LBC Information Services, 1998.
Smith, John William. A
Selection of Leading Cases on Various Branches of the Law, 13th ed.
Toronto: Carswell, 1929.
APPEAL and CROSS-APPEAL from a judgment of the Ontario
Court of Appeal (2000), 52 O.R. (3d) 181, 194 D.L.R. (4th) 577 (sub nom.
Odhavji Estate v. Toronto Metropolitan Police Force), 142 O.A.C. 149, 3
C.C.L.T. (3d) 226, [2000] O.J. No. 4733 (QL), varying a judgment of the Ontario
Court (General Division), [1998] O.J. No. 5426 (QL). Appeal allowed in part
and cross-appeal dismissed.
Julian N. Falconer and Richard
Macklin, for the appellants/respondents on cross-appeal.
Kevin McGivney, Cheryl
Woodin and Robert W. Traves, for the respondents Woodhouse and
Gerrits.
Ansuya Pachai and Kerri
Kitchura, for the respondent/appellant on cross-appeal the Metropolitan
Toronto Chief of Police David Boothby and the respondent the Metropolitan
Toronto Police Services Board.
John P. Zarudny, Troy
Harrison and James Kendik, for the respondent Her Majesty the Queen
in Right of Ontario.
David Sgayias, Q.C.,
and Anne M. Turley, for the intervener the Attorney General of Canada.
D. Clifton Prowse and J.
Gareth Morley, for the intervener the Attorney General of British Columbia.
Written submissions only by John B. Laskin and Kristine
M. Di Bacco, for the intervener the Canadian Civil Liberties
Association.
Written submissions only by Peter J. Pliszka
and Anne C. McConville, for the intervener the Urban Alliance on Race
Relations.
Written submissions only by Marie Chen and Sheena
Scott, for the intervener the African Canadian Legal Clinic.
Written submissions only by Suzan E. Fraser and
Najma Jamaldin, for the intervener the Mental Health Legal Committee.
Written submissions only by Sean Dewart and Louis
Sokolov, for the intervener the Association in Defence of the Wrongfully
Convicted.
Written submissions only by Marlys A. Edwardh
and Breese Davies for the intervener the Innocence Project of Osgoode
Hall Law School.
The judgment of the Court was delivered by
1
Iacobucci J. — This appeal
concerns actions for misfeasance in a public office and negligence within the
context of motions to strike the actions as disclosing no reasonable cause of
action. Unlike the Court of Appeal, I would permit the actions for misfeasance
in a public office to proceed. Like the Court of Appeal, I would permit the
action against Metropolitan Toronto Chief of Police David Boothby to proceed,
but would strike the actions for negligence against the Metropolitan Toronto
Police Services Board and Her Majesty the Queen in Right of Ontario.
I. Facts
2
On September 26, 1997, Manish Odhavji was fatally shot by officers of
the Metropolitan Toronto Police Service while running from his vehicle
subsequent to a bank robbery. Within 25 minutes of the shooting, an assistant
to Metropolitan Toronto Chief of Police David Boothby (the “Chief”) notified
the Special Investigations Unit of the Ministry of the Solicitor General (the
“SIU”) of the incident.
3
The SIU is a civilian agency statutorily mandated to conduct independent
investigations of police conduct in cases of death or serious injury caused by
the police. The SIU began its investigation immediately. It requested that
the defendant officers remain segregated, that they make themselves available
for same-day interviews, and that they provide their shift notes, on-duty
clothing, and blood samples. Under s. 113(9) of the Police Services Act,
R.S.O. 1990, c. P.15, members of the force are under a statutory obligation to
cooperate with members of the SIU in the conduct of the investigation. Under
s. 41(1) of the Police Services Act, a chief of police is required to
ensure that members of the force carry out their duties in accordance with the
provisions of the Act.
4
The estate of Mr. Odhavji and the members of his immediate family (the
“plaintiffs”) allege that the defendant officers intentionally breached their
statutory obligation to cooperate fully with the SIU investigation. In
particular, the plaintiffs allege that the defendant officers did not attend
for interviews with the SIU until September 30, that they did not comply with
the request to remain segregated, and that they failed to comply with the
request for shift notes, on-duty clothing, and blood samples in a timely manner
— and that when statements were eventually given to the SIU, they were both
inaccurate and misleading. In the plaintiffs’ statement of claim, the lack of
a thorough investigation into the shooting incident has caused the plaintiffs
to suffer mental distress, anger, depression and anxiety. The plaintiffs
further allege that these damages are consequences that the defendant officers
and the Chief knew or ought to have known would result from an inadequate
investigation into the shooting incident.
5
The actions at issue in this appeal are not related to the allegedly
wrongful death of Mr. Odhavji, but, rather, to the defendant officers’ alleged
failure to cooperate with the SIU. It is the plaintiffs’ submission that the
foregoing facts give rise to an action for misfeasance in a public office
against the defendant officers and the Chief, and actions for negligence
against the Chief, the Metropolitan Toronto Police Services Board (the “Board”)
and Her Majesty the Queen in Right of Ontario (the “Province”). More
specifically, this appeal concerns: (i) the plaintiffs’ appeal against the
Court of Appeal’s decision to strike the actions for misfeasance in a public
office, and the actions for negligence against the Board and the Province, on
the basis that they disclose no reasonable cause of action; and (ii) the
Chief’s cross-appeal against the Court of Appeal’s decision to allow the action
for negligence against the Chief to proceed.
II. Relevant Statutory Provisions
6
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21
rule 21 determination of an
issue before trial
21.01 (1) A party may move before a
judge,
.
. .
(b) to strike out a pleading on the ground
that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
Police
Services Act, R.S.O. 1990, c. P.15
3. — . . .
(2) The Solicitor General shall,
(a) monitor
police forces to ensure that adequate and effective police services are
provided at the municipal and provincial levels;
(b) monitor boards and police forces to ensure
that they comply with prescribed standards of service;
.
. .
(d) develop and promote programs to enhance
professional police practices, standards and training;
31. — (1) A board is responsible for the
provision of police services and for law enforcement and crime prevention in
the municipality and shall, [since amended]
.
. .
(b) generally determine, after consultation
with the chief of police, objectives and priorities with respect to police
services in the municipality;
(c) establish policies for the effective
management of the police force;
.
. .
(e) direct
the chief of police and monitor his or her performance;
.
. .
(4) The board shall not direct the chief of police
with respect to specific operational decisions or with respect to the day‑to‑day
operation of the police force.
41. — (1) The duties of a chief of police include,
.
. .
(b) ensuring that members of the police force
carry out their duties in accordance with this Act and the regulations and in a
manner that reflects the needs of the community, and that discipline is
maintained in the police force;
113. — (1) There shall be a special
investigations unit of the Ministry of the Solicitor General.
.
. .
(9) Members of police forces shall co-operate
fully with the members of the unit in the conduct of investigations.
III. Judicial History
A. Ontario Court (General Division),
[1998] O.J. No. 5426 (QL)
7
According to Day J., misfeasance in a public office can be established
in one of two ways: either by proof of malice with intent to injure, or by
proof that the public officer intentionally engaged in acts that were ultra
vires the scope of his or her office and that she or he could foresee with
a degree of certainty that harm would be caused to the plaintiff. As applied
to the facts of this case, Day J. concluded that the action against the
defendant officers could proceed, but only if the cause of action for
misfeasance was framed in malice. He held that it was plain and obvious that
the action for misfeasance in a public office against the Chief would fail,
owing to the fact that he was not directly and consciously involved in the
breach of the obligation to cooperate with the SIU investigation.
8
Day J. allowed the action for negligent supervision against the Chief to
proceed on the basis that he made no submissions in respect of this issue. In
respect of the actions for negligent supervision against the Board and the
Province, Day J. found that there was sufficient proximity between the parties
to conclude that the defendants owed a duty of care to the appellants.
Nonetheless, Day J. struck the action against the Board, on the basis that a
duty of care is negatived in situations in which the agency’s involvement was
limited to establishing policy. He found that the action for negligent
supervision against the Province could succeed, on the basis that a cause of
action for negligence lies where the responsible Minister fails to take
sufficient steps to implement a particular policy decision, in this instance
the decision to establish the SIU.
B. Ontario Court of Appeal (2000), 52
O.R. (3d) 181
9
Borins J.A., for the majority of the court, held that the defining
element of misfeasance in a public office is the unlawful exercise of a
statutory or prerogative power that adheres to the defendant’s office. On this
view, the failure of a public officer to perform a statutory duty cannot constitute
misfeasance in a public office. Consequently, Borins J.A. found it plain and
obvious that neither action for misfeasance in a public office could succeed,
owing to the fact that the defendants had not been engaged in the exercise of a
statutory or prerogative power that adhered to their respective offices. The
most that could be said was that the defendants failed to comply with the
obligations imposed upon them by the Police Services Act.
10
In respect of the actions for negligent supervision, Borins J.A. held
that the action against the Chief was based on s. 41(1)(b) of the Police
Services Act, which imposes a duty on a chief of police to ensure that
members of the police force carry out their duties in accordance with the Act
and its regulations. Borins J.A. concluded that it was not plain and obvious
that the action for negligent supervision against the Chief must fail. It was,
however, plain and obvious that the actions against the Board and the Province
must fail. With respect to the Board, Borins J.A. agreed with Day J. that the
Board’s involvement was limited to establishing policy. With respect to the
Province, Borins J.A. held that the Police Services Act does not impose
a duty on the Province to control the operational conduct of the municipal
police officers or to ensure that police officers comply with their obligation
to cooperate with an SIU investigation.
11
Feldman J.A., dissenting, did not agree that it was plain and obvious
that the actions for misfeasance in a public office must fail. In her view,
the essence of the tort is the misfeasance in or misuse of the office itself;
its purpose is to prevent the deliberate injuring of members of the public by
the intentional disregard of official duty. Feldman J.A. thus held that there
is no principled reason to distinguish between a public officer who improperly
exercises a power and a public officer who deliberately fails to carry out a
duty where they know or are recklessly indifferent to the fact that injury to
the plaintiff is the likely result. Applied to the facts of this case, Feldman
J.A. would have found that the actions for misfeasance in a public office
should have been allowed to proceed.
12
Feldman J.A. also was of the view that each of the actions for negligent
supervision should have been allowed to proceed. She agreed with Borins J.A.
that the Province is not under an obligation to ensure that individual officers
comply with their statutory obligation to cooperate with the SIU, but noted
that the nature of the claim was that the Province failed to implement training
procedures or other policies in order to ensure that officers, as a matter of
general practice, cooperated with the SIU. Feldman J.A. was uncertain whether
the Police Services Act imposes a statutory duty on the Province in
respect of these operational matters, and thus felt it inappropriate to strike
the claim at this stage of the action. In respect of the Board, Feldman J.A.
found that it was not immediately clear whether the Board is under an obligation
to establish policies and monitor their implementation for the purpose of
ensuring that police officers comply with their statutory obligations. Thus,
Feldman J.A. would have found that it was not plain and obvious that the
actions for negligent supervision could not succeed.
IV. Analysis
13
In discussing the issues in this appeal, I will begin by stating the
test for striking a statement of claim on the basis that it discloses no
reasonable cause of action. I will then consider that test within the context
of the actions for misfeasance in a public office, and then within the context
of the actions for negligence.
A. Striking Out a Statement of Claim
14
The defendants’ motions to have the actions dismissed were made pursuant
to rule 21.01(1)(b) of the Ontario Rules of Civil Procedure, R.R.O.
1990, Reg. 194. Rule 21.01(1)(b) stipulates that a court may strike out a
statement of claim that discloses no reasonable cause of action. The rules
with respect to striking out a statement of claim are much the same in other
provinces. In British Columbia, for example, rule 19(24)(a) of the Rules
of Court, B.C. Reg. 221/90, states that a court may strike out a
pleading on the ground that it discloses no reasonable claim.
15
An excellent statement of the test for striking out a claim under such
provisions is that set out by Wilson J. in Hunt v. Carey Canada Inc.,
[1990] 2 S.C.R. 959, at p. 980:
. . . assuming that the facts as stated in the statement of claim can
be proved, is it “plain and obvious” that the plaintiff’s statement of claim
discloses no reasonable cause of action? As in England, if there is a chance
that the plaintiff might succeed, then the plaintiff should not be “driven from
the judgment seat”. Neither the length and complexity of the issues, the
novelty of the cause of action, nor the potential for the defendant to present
a strong defence should prevent the plaintiff from proceeding with his or her
case. Only if the action is certain to fail because it contains a radical
defect . . . should the relevant portions of a plaintiff’s statement of claim
be struck out . . . .
The test is a
stringent one. The facts are to be taken as pleaded. When so taken, the
question that must then be determined is whether there it is “plain and
obvious” that the action must fail. It is only if the statement of claim is
certain to fail because it contains a “radical defect” that the plaintiff
should be driven from the judgment. See also Attorney General of
Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735.
B. The Actions for Misfeasance in a Public
Office
16
The essence of the Court of Appeal’s decision is that the “radical
defect” from which the actions for misfeasance in a public office suffer is
their failure to plead the constituent elements of the tort. In particular,
the Court of Appeal held that the defining element of the tort is the unlawful
exercise of the statutory or prerogative powers that adhere to the defendant’s
office. Because the alleged misconduct involved the breach of a statutory duty
rather than the improper or unlawful exercise of a statutory or prerogative
power, it is “plain and obvious”, on this view, that the actions for
misfeasance in a public office cannot succeed.
17
Consequently, I begin by considering the Court of Appeal’s conclusion
that the unlawful exercise of a statutory or prerogative power is a constituent
element of the tort. With respect, a review of the leading cases clearly
reveals that the tort is not limited to circumstances in which the defendant
officer is engaged in the unlawful exercise of a particular statutory or
prerogative power. As I will discuss, the class of conduct at which the tort
is targeted is not as narrow as the unlawful exercise of a particular statutory
or prerogative power, but more broadly based on unlawful conduct in the
exercise of public functions generally.
(1) The Defining Elements of the Tort
18
The origins of the tort of misfeasance in a public office can be traced
to Ashby v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126, in which Holt
C.J. found that a cause of action lay against an elections officer who
maliciously and fraudulently deprived Mr. White of the right to vote. Although
the defendant possessed the power to deprive certain persons from participating
in the election, he did not have the power to do so for an improper purpose.
Although the original judgment suggests that he was simply applying the
principle ubi jus ibi remedium, Holt C.J. produced a revised form of the
judgment in which he stated that it was because fraud and malice were proven
that the action lay: J. W. Smith, A Selection of Leading Cases on Various
Branches of the Law (13th ed. 1929), at p. 282. Thus, in its earliest form
it is arguable that misfeasance in a public office was limited to circumstances
in which a public officer abused a power actually possessed.
19
Subsequent cases, however, have made clear that the ambit of the tort is
not restricted in this manner. In Roncarelli v. Duplessis, [1959]
S.C.R. 121, this Court found the defendant Premier of Quebec liable for
directing the manager of the Quebec Liquor Commission to revoke the plaintiff’s
liquor licence. Although Roncarelli was decided at least in part on the
basis of the Quebec civil law of delictual responsibility, it is widely regarded
as having established that misfeasance in a public office is a recognized tort
in Canada. See for example Powder Mountain Resorts Ltd. v. British Columbia
(2001), 94 B.C.L.R. (3d) 14, 2001 BCCA 619; and Alberta (Minister of
Public Works, Supply and Services) v. Nilsson (2002), 220 D.L.R. (4th) 474,
2002 ABCA 283. In Roncarelli, the Premier was authorized to give advice
to the Commission in respect of any legal questions that might arise, but had
no authority to involve himself in a decision to revoke a particular licence.
As Abbott J. observed, at p. 184, Mr. Duplessis “was given no statutory power
to interfere in the administration or direction of the Quebec Liquor
Commission”. Martland J. made a similar observation, at p. 158, stating that
Mr. Duplessis’ conduct involved “the exercise of powers which, in law, he did
not possess at all”. From this, it is clear that the tort is not restricted to
the abuse of a statutory or prerogative power actually held. If that were the
case, there would have been no grounds on which to find Mr. Duplessis liable.
20
This understanding of the tort is consistent with the widespread
consensus in other common law jurisdictions that there is a broad range of
misconduct that can found an action for misfeasance in a public office. For
example, in Northern Territory of Australia v. Mengel (1995), 129 A.L.R.
1 (H.C.), Brennan J. wrote as follows, at p. 25:
The tort is not limited to an abuse of office by
exercise of a statutory power. Henly v. Mayor of Lyme [(1828), 5 Bing.
91, 130 E.R. 995] was not a case arising from an impugned exercise of a
statutory power. It arose from an alleged failure to maintain a sea wall or
bank, the maintenance of which was a condition of the grant to the corporation
of Lyme of the sea wall or bank and the appurtenant right to tolls. Any act
or omission done or made by a public official in the purported performance of
the functions of the office can found an action for misfeasance in public
office. [Emphasis added.]
In Garrett
v. Attorney-General, [1997] 2 N.Z.L.R. 332, the Court of Appeal for New
Zealand considered an allegation that a sergeant failed to investigate properly
the plaintiff’s claim that she had been sexually assaulted by a police
constable. Blanchard J. concluded, at p. 344, that the tort can be committed
“by an official who acts or omits to act in breach of duty knowing about the
breach and also knowing harm or loss is thereby likely to be occasioned to the
plaintiff”.
21
The House of Lords reached the same conclusion in Three Rivers
District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220. In Three
Rivers, the plaintiffs alleged that officers with the Bank of England
improperly issued a licence to the Bank of Credit and Commerce International
and then failed to close the bank once it became evident that such action was
necessary. Forced to consider whether the tort could apply in the case of
omissions, the House of Lords concluded that “the tort can be constituted by an
omission by a public officer as well as by acts on his part” (per Lord
Hutton, at p. 1267). In Australia, New Zealand and the United Kingdom, it is
equally clear that the tort of misfeasance is not limited to the unlawful
exercise of a statutory or prerogative power actually held.
22
What then are the essential ingredients of the tort, at least insofar as
it is necessary to determine the issues that arise on the pleadings in this
case? In Three Rivers, the House of Lords held that the tort of misfeasance
in a public office can arise in one of two ways, what I shall call Category A
and Category B. Category A involves conduct that is specifically intended to
injure a person or class of persons. Category B involves a public officer who
acts with knowledge both that she or he has no power to do the act complained
of and that the act is likely to injure the plaintiff. This understanding of
the tort has been endorsed by a number of Canadian courts: see for example Powder
Mountain Resorts, supra; Alberta (Minister of Public Works,
Supply and Services) (C.A.), supra; and Granite Power Corp. v.
Ontario, [2002] O.J. No. 2188 (QL) (S.C.J.). It is important, however, to
recall that the two categories merely represent two different ways in which a
public officer can commit the tort; in each instance, the plaintiff must prove
each of the tort’s constituent elements. It is thus necessary to consider the
elements that are common to each form of the tort.
23
In my view, there are two such elements. First, the public officer must
have engaged in deliberate and unlawful conduct in his or her capacity as a
public officer. Second, the public officer must have been aware both that his
or her conduct was unlawful and that it was likely to harm the plaintiff. What
distinguishes one form of misfeasance in a public office from the other is the
manner in which the plaintiff proves each ingredient of the tort. In Category
B, the plaintiff must prove the two ingredients of the tort independently of
one another. In Category A, the fact that the public officer has acted for the
express purpose of harming the plaintiff is sufficient to satisfy each
ingredient of the tort, owing to the fact that a public officer does not have
the authority to exercise his or her powers for an improper purpose, such as
deliberately harming a member of the public. In each instance, the tort
involves deliberate disregard of official duty coupled with knowledge that the
misconduct is likely to injure the plaintiff.
24
Insofar as the nature of the misconduct is concerned, the essential
question to be determined is not whether the officer has unlawfully exercised a
power actually possessed, but whether the alleged misconduct is deliberate and
unlawful. As Lord Hobhouse wrote in Three Rivers, supra, at p.
1269:
The relevant act (or omission, in the sense
described) must be unlawful. This may arise from a straightforward breach of
the relevant statutory provisions or from acting in excess of the powers
granted or for an improper purpose.
Lord Millett
reached a similar conclusion, namely, that a failure to act can amount to
misfeasance in a public office, but only in those circumstances in which the
public officer is under a legal obligation to act. Lord Hobhouse stated the
principle in the following terms, at p. 1269: “If there is a legal duty to act
and the decision not to act amounts to an unlawful breach of that legal duty,
the omission can amount to misfeasance [in a public office].” See also R.
v. Dytham, [1979] Q.B. 722 (C.A.). So, in the United Kingdom, a failure to
act can constitute misfeasance in a public office, but only if the failure to
act constitutes a deliberate breach of official duty.
25
Canadian courts also have made a deliberate unlawful act a focal point
of the inquiry. In Alberta (Minister of Public Works, Supply and Services)
v. Nilsson (1999), 70 Alta. L.R. (3d) 267, 1999 ABQB 440, at para. 108, the
Court of Queen’s Bench stated that the essential question to be determined is
whether there has been deliberate misconduct on the part of a public official.
Deliberate misconduct, on this view, consists of: (i) an intentional illegal
act; and (ii) an intent to harm an individual or class of individuals. See
also Uni-Jet Industrial Pipe Ltd. v. Canada (Attorney General) (2001),
156 Man. R. (2d) 14, 2001 MBCA 40, in which Kroft J.A. adopted the same test.
In Powder Mountain Resorts, supra, Newbury J.A. described the
tort in similar terms, at para. 7:
. . . it may, I think, now be accepted that the tort of abuse of public
office will be made out in Canada where a public official is shown either to
have exercised power for the specific purpose of injuring the plaintiff (i.e.,
to have acted in “bad faith in the sense of the exercise of public power for an
improper or ulterior motive”) or to have acted “unlawfully with a mind of
reckless indifference to the illegality of his act” and to the probability of
injury to the plaintiff. (See Lord Steyn in Three Rivers, at [1231].)
Thus there remains what in theory at least is a clear line between this tort on
the one hand, and what on the other hand may be called negligent excess of
power — i.e., an act committed without knowledge of (or subjective
recklessness as to) its unlawfulness and the probable consequences for the
plaintiff. [Emphasis in original.]
Under this
view, the ambit of the tort is limited not by the requirement that the
defendant must have been engaged in a particular type of unlawful conduct, but
by the requirement that the unlawful conduct must have been deliberate and the
defendant must have been aware that the unlawful conduct was likely to harm the
plaintiff.
26
As is often the case, there are a number of phrases that might be used
to describe the essence of the tort. In Garrett, supra,
Blanchard J. stated, at p. 350, that “[t]he purpose behind the imposition of
this form of tortious liability is to prevent the deliberate injuring of
members of the public by deliberate disregard of official duty.” In Three
Rivers, supra, Lord Steyn stated, at p. 1230, that “[t]he rationale
of the tort is that in a legal system based on the rule of law executive or
administrative power ‘may be exercised only for the public good’ and not for
ulterior and improper purposes.” As each passage makes clear, misfeasance in a
public office is not directed at a public officer who inadvertently or
negligently fails adequately to discharge the obligations of his or her office:
see Three Rivers, at p. 1273, per Lord Millett. Nor is the tort
directed at a public officer who fails adequately to discharge the obligations
of the office as a consequence of budgetary constraints or other factors beyond
his or her control. A public officer who cannot adequately discharge his or
her duties because of budgetary constraints has not deliberately disregarded
his or her official duties. The tort is not directed at a public officer who is
unable to discharge his or her obligations because of factors beyond his
or her control but, rather, at a public officer who could have
discharged his or her public obligations, yet wilfully chose to do otherwise.
27
Another factor that may remove an official’s conduct from the scope of
the tort of misfeasance in a public office is a conflict with the officer’s
statutory obligations and his or her constitutionally protected rights, such as
the right against self-incrimination. Should such circumstances arise, a
public officer’s decision not to comply with his or her statutory obligation may
not amount to misfeasance in a public office. I need not decide that question
here except that it could be argued. A public officer who properly insists on
asserting his or her constitutional rights cannot accurately be said to have
deliberately disregarded the legal obligations of his or her office. Under
this argument, an obligation inconsistent with the officer’s constitutional
rights is not itself lawful.
28
As a matter of policy, I do not believe that it is necessary to place
any further restrictions on the ambit of the tort. The requirement that the
defendant must have been aware that his or her conduct was unlawful reflects
the well-established principle that misfeasance in a public office requires an
element of “bad faith” or “dishonesty”. In a democracy, public officers must
retain the authority to make decisions that, where appropriate, are adverse to
the interests of certain citizens. Knowledge of harm is thus an insufficient
basis on which to conclude that the defendant has acted in bad faith or
dishonestly. A public officer may in good faith make a decision that she or he
knows to be adverse to interests of certain members of the public. In order
for the conduct to fall within the scope of the tort, the officer must deliberately
engage in conduct that he or she knows to be inconsistent with the obligations
of the office.
29
The requirement that the defendant must have been aware that his or her
unlawful conduct would harm the plaintiff further restricts the ambit of the
tort. Liability does not attach to each officer who blatantly disregards his
or her official duty, but only to a public officer who, in addition,
demonstrates a conscious disregard for the interests of those who will be
affected by the misconduct in question. This requirement establishes the
required nexus between the parties. Unlawful conduct in the exercise of public
functions is a public wrong, but absent some awareness of harm there is no
basis on which to conclude that the defendant has breached an obligation that
she or he owes to the plaintiff, as an individual. And absent the
breach of an obligation that the defendant owes to the plaintiff, there can be
no liability in tort.
30
In sum, I believe that the underlying purpose of the tort is to protect
each citizen’s reasonable expectation that a public officer will not
intentionally injure a member of the public through deliberate and unlawful
conduct in the exercise of public functions. Once these requirements have been
satisfied, it is unclear why the tort would be restricted to a public officer
who engaged in the unlawful exercise of a statutory power that she or he
actually possesses. If the tort were restricted in this manner, the tort would
not extend to a public officer, such as Mr. Duplessis, who intentionally exceeded
his powers for the express purpose of interfering with a citizen’s economic
interests. Nor would it extend to a public officer who breached a statutory
obligation for the same purpose. But there is no principled reason, in my
view, why a public officer who wilfully injures a member of the public through
intentional abuse of a statutory power would be liable, but not a public
officer who wilfully injures a member of the public through an intentional excess
of power or a deliberate failure to discharge a statutory duty. In each
instance, the alleged misconduct is equally inconsistent with the obligation of
a public officer not to intentionally injure a member of the public through
deliberate and unlawful conduct in the exercise of public functions.
31
I wish to stress that this conclusion is not inconsistent with R. v.
Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, in which the Court
established that the nominate tort of statutory breach does not exist. Saskatchewan
Wheat Pool states only that it is insufficient that the defendant
has breached the statute. It does not, however, establish that the breach of a
statute cannot give rise to liability if the constituent elements of tortious
responsibility have been satisfied. Put a different way, the mere fact that
the alleged misconduct also constitutes a breach of statute is insufficient to
exempt the officer from civil liability. Just as a public officer who breaches
a statute might be liable for negligence, so too might a public officer who
breaches a statute be liable for misfeasance in a public office. Saskatchewan
Wheat Pool would only be relevant to this motion if the appellants had
pleaded no more than a failure to discharge a statutory obligation. This,
however, is not the case. The principle established in Saskatchewan Wheat
Pool has no bearing on the outcome of the motion on this appeal.
32
To summarize, I am of the opinion that the tort of misfeasance in a
public office is an intentional tort whose distinguishing elements are twofold:
(i) deliberate unlawful conduct in the exercise of public functions; and (ii)
awareness that the conduct is unlawful and likely to injure the plaintiff.
Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff
must also prove the other requirements common to all torts. More specifically,
the plaintiff must prove that the tortious conduct was the legal cause of his
or her injuries, and that the injuries suffered are compensable in tort law.
(2) Application to the Case at Hand
33
As outlined earlier, on a motion to strike on the basis that the
statement of claim discloses no reasonable cause of action, the facts are taken
as pleaded. Consequently, the primary question that arises on this appeal is
whether the statement of claim pleads each of the constituent elements of the
tort.
34
In respect of the first constituent element, namely, unlawful conduct in
the exercise of public functions, the statement of claim alleges that the
defendant officers did not cooperate with the SIU investigation, but, rather,
took positive steps to frustrate the investigation. As described above, police
officers are under a statutory obligation to cooperate fully with members of
the SIU in the conduct of investigations, pursuant to s. 113(9) of the Police
Services Act. On the face of it, the decision not to cooperate with an
investigation constitutes an unlawful breach of statutory duty. Similarly, the
alleged failure of the Chief to ensure that the defendant officers cooperated
with the investigation also would seem to constitute an unlawful breach of
duty. Under s. 41(1)(b) of the Police Services Act, the duties of a
chief of police include ensuring that members of the police force carry out
their duties in accordance with the Act. A decision not to ensure that police
officers cooperate with the SIU is inconsistent with the statutory obligations
of the office.
35
As discussed above, an obligation inconsistent with a public officer’s
constitutional rights cannot give rise to misfeasance in a public office. It
is arguable that the statutory obligation to cooperate fully with the members
of the SIU cannot trump a police officer’s constitutional right against
self-incrimination. I do not need to answer this question because it has not
been argued that the SIU’s requests were inconsistent with the officers’
constitutional rights. Nor has it been argued that the alleged misconduct,
which includes submitting inaccurate and misleading shift notes and disobeying
an order to remain segregated, is privileged by the right against
self-incrimination. As a consequence, it is not “plain and obvious” that the officers
were faced with a stark choice between complying with the SIU’s requests and
abandoning their right against self-incrimination, either as a matter of fact
or law. The potential conflict between the duty to cooperate with the SIU and
the right against self-incrimination cannot be relied on to dismiss the action
at this stage of the proceedings.
36
Insofar as the second requirement is concerned, the statement of claim
alleges that the acts and omissions of the defendant officers “represented
intentional breaches of their legal duties as police officers”. This plainly
satisfies the requirement that the officers were aware that the alleged failure
to cooperate with the investigation was unlawful. The allegation is not simply
that the officers failed to comply with s. 113(9) of the Police Services Act,
but that the failure to comply was intentional and deliberate. Insofar as the
Chief is concerned, the statement of claim alleges as follows:
(i) Chief Boothby, through his legal counsel,
was directed by S.I.U. officers to segregate the defendant officers and he
deliberately failed to do so;
(ii) Chief Boothby failed to ensure that
defendant police officers produced timely and complete notes;
(iii) Chief Boothby failed to ensure that the
defendant police officers attended for requested interviews by S.I.U. in a
timely manner; and
(iv) Chief Boothby failed to ensure that the
defendant police officers gave accurate and complete accounts of the specifics
of the shooting incident.
37
Although the allegation that the Chief deliberately failed to
segregate the officers satisfies the requirement that the Chief intentionally
breached his legal obligation to ensure compliance with the Police Services
Act, the same cannot be said of his alleged failure to ensure that the
defendant officers produced timely and complete notes, attended for interviews
in a timely manner, and provided accurate and complete accounts of the
incident. As above, inadvertence or negligence will not suffice; a mere
failure to discharge the obligations of the office cannot constitute
misfeasance in a public office. In light of the allegation that the Chief’s
failure to segregate the officers was deliberate, this is not a sufficient
basis on which to strike the pleading. Suffice it to say, the failure to issue
orders for the purpose of ensuring that the defendant officers cooperated with
the investigation will only constitute misfeasance in a public office if the
plaintiffs prove that the Chief deliberately failed to comply with the standard
established by s. 41(1)(b) of the Police Services Act.
38
The statement of claim also alleges that the defendant officers and the
Chief “knew or ought to have known” that the alleged misconduct would cause
the plaintiffs to suffer physically, psychologically and emotionally. Although
the allegation that the defendants knew that a failure to cooperate with
the investigation would injure the plaintiffs satisfies the requirement that
the alleged misconduct was likely to injure the plaintiffs, misfeasance in a
public office is an intentional tort that requires subjective awareness that
harm to the plaintiff is a likely consequence of the alleged misconduct. At
the very least, according to a number of cases, the defendant must have been
subjectively reckless or wilfully blind as to the possibility that harm was a
likely consequence of the alleged misconduct: see for example Three Rivers,
supra; Powder Mountain Resorts, supra; and Alberta
(Minister of Public Works, Supply and Services) (C.A.), supra.
This, again, is not a sufficient basis on which to strike the pleading. It is
clear, however, that the phrase “or ought to have known” must be struck from
the statement of claim.
39
The final factor to be considered is whether the damages that the
plaintiffs claim to have suffered as a consequence of the aforementioned
misconduct are compensable. In the defendant officers’ submission, the alleged
damages are non-compensable. Consequently, it is their submission that even if
the plaintiffs could prove the other elements of the tort, it still would be
plain and obvious that the actions for misfeasance in a public office must
fail.
40
In the defendant officers’ submission, the essence of the plaintiffs’
claim is that they were deprived of a thorough, competent and credible
investigation. And owing to the fact that no individual has a private right to
a thorough, competent and credible criminal investigation, the plaintiffs have
suffered no compensable damages. If this were an accurate assessment of the
plaintiffs’ claim, I would agree. Individual citizens might desire a thorough
investigation, or even that the investigation result in a certain outcome, but
they are not entitled to compensation in the absence of a thorough
investigation or if the desired outcome fails to materialize. This, however,
is not an accurate assessment of the plaintiffs’ submission. In their
statement of claim, the plaintiffs also allege that they have suffered
physically, psychologically and emotionally, in the form of mental distress,
anger, depression and anxiety as a direct result of the defendant officers’
failure to cooperate with the SIU.
41
Although courts have been cautious in protecting an individual’s right
to psychiatric well-being, compensation for damages of this kind is not foreign
to tort law. As the law currently stands, that the appellant has suffered
grief or emotional distress is insufficient. Nevertheless, it is well
established that compensation for psychiatric damages is available in instances
in which the plaintiff suffers from a “visible and provable illness” or
“recognizable physical or psychopathological harm”: see for example Guay v.
Sun Publishing Co., [1953] 2 S.C.R. 216, and Frame v. Smith, [1987]
2 S.C.R. 99. Consequently, even if the plaintiffs could prove that they had
suffered psychiatric damage, in the form of anxiety or depression, they still
would have to prove both that it was caused by the alleged misconduct and that
it was of sufficient magnitude to warrant compensation. But the causation and
magnitude of psychiatric damage are matters to be determined at trial. At the
pleadings stage, it is sufficient that the statement of claim alleges that the
plaintiffs have suffered mental distress, anger, depression and anxiety as a
consequence of the alleged misconduct.
42
In the final analysis, I would allow the appeal in respect of the
actions for misfeasance in a public office. If the facts are taken as pleaded,
it is not plain and obvious that the actions for misfeasance in a public office
against the defendant officers and the Chief must fail. The plaintiffs may
well face an uphill battle, but they should not be deprived of the opportunity
to prove each of the constituent elements of the tort.
C. The Actions for Negligence
43
In addition to the actions for misfeasance in a public office, the
statement of claim includes actions for negligence against the Chief, the Board
and the Province. The essence of these claims is that the Chief, the Board and
the Province are liable as a consequence of their failure to ensure that the
defendant officers complied with s. 113(9) of the Police Services Act.
44
In order for an action in negligence to succeed, a plaintiff must be
able to establish three things: (i) that the defendant owed the plaintiff a
duty of care; (ii) that the defendant breached that duty of care; and (iii)
that damages resulted from that breach. The primary question that arises on
this appeal is in respect of the first element, namely, whether the defendants
owed to the appellants a duty to take reasonable care to ensure that the
defendant officers cooperated with the SIU investigation. If the defendants
are under no such obligation, the actions for negligence cannot succeed. After
discussing the general principles applicable to the duty of care analysis, I
will go on to discuss this approach in the context of the negligence actions
against the Chief, the Board and the Province. I will also address the
defendants’ submission that complained of harm is non-compensable.
(1) The Duty of Care
45
It is a well-established principle that a defendant is not liable in
negligence unless the law exacts an obligation in the circumstances to take
reasonable care. As Lord Esher concluded in Le Lievre v. Gould, [1893]
1 Q.B. 491 (C.A.), at p. 497, “[a] man is entitled to be as negligent as he
pleases towards the whole world if he owes no duty to them.” Duty may
therefore be defined as an obligation, recognised by law, to take reasonable
care to avoid conduct that entails an unreasonable risk of harm to others.
46
It is now well established in Canada that the existence of such a duty
is to be determined in accordance with the two-step analysis first enunciated
by the House of Lords in Anns v. Merton London Borough Council, [1978]
A.C. 728, at pp. 751-52:
First one has to ask whether, as between the alleged wrongdoer and the
person who has suffered damage there is a sufficient relationship of proximity
or neighbourhood such that, in the reasonable contemplation of the former,
carelessness on his part may be likely to cause damage to the latter — in which
case a prima facie duty of care arises. Secondly, if the
first question is answered affirmatively, it is necessary to consider whether
there are any considerations which ought to negative, or to reduce or limit the
scope of the duty or the class of person to whom it is owed or the damages to
which a breach of it may give rise.
See for
example Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; B.D.C. Ltd.
v. Hofstrand Farms Ltd., [1986] 1 S.C.R. 228; Canadian National Railway
Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021; London Drugs
Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299; Winnipeg
Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R.
85; and Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79.
47
The first stage of analysis, then, demands an inquiry into whether there
is a sufficiently close relationship between the plaintiff and defendant that
the defendant owes to the plaintiff a prima facie duty of care. The
question of when such a duty arises is one with which this Court and others
have repeatedly grappled since Lord Atkin enunciated the neighbour principle in
Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), at p. 580:
The rule that you are to love your neighbour becomes in law, you must
not injure your neighbour; and the lawyer’s question, Who is my neighbour?
receives a restricted reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law is my neighbour? The answer seems to be —
persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question.
As eloquently
observed by Professor J. G. Fleming, this passage is a sacrosanct preamble to
judicial disquisitions on duty, yet contains a fateful ambiguity: The Law of
Torts (9th ed. 1998), at p. 151. More specifically, does the reference to
persons so closely and directly affected by the conduct in question that the
defendant ought reasonably to have had them in contemplation conflate
foreseeability of harm and duty? Or does it require something in addition to
foreseeability of harm?
48
In Cooper, supra, the Court clearly stated that the latter
approach is the correct one. At para. 29 of their joint reasons, McLachlin
C.J. and Major J. stated that there must be reasonable foreseeability of harm
“plus something more”. At para. 31, they concluded that this “something more”
is proximity: in order to establish that the defendant owed the plaintiff a
duty of care, the reasonable foreseeability of harm must be supplemented by
proximity. It is only if harm is a reasonably foreseeable consequence of the
conduct in question and there is a sufficient degree of proximity
between the parties that a prima facie duty of care is established. The
question that thus arises is what precisely is meant by the term proximity.
49
McLachlin C.J. and Major J. concluded, at para. 32, that the term
“proximity”, in the context of negligence law, is used to describe the type of
relationship in which a duty of care to guard against foreseeable harm may
rightly be imposed. As this Court stated in Hercules Managements Ltd. v.
Ernst & Young, [1997] 2 S.C.R. 165, at para. 24:
The label “proximity”, as it was used by Lord Wilberforce in Anns,
supra, was clearly intended to connote that the circumstances of the
relationship inhering between the plaintiff and the defendant are of such a
nature that the defendant may be said to be under an obligation to be mindful
of the plaintiff’s legitimate interests in conducting his or her affairs.
50
Consequently, the essential purpose of the inquiry is to evaluate the
nature of that relationship in order to determine whether it is just and fair
to impose a duty of care on the defendant. The factors that are relevant to
this inquiry depend on the circumstances of the case. As stated by McLachlin
J. (as she then was) in Norsk, supra, at p. 1151, “[p]roximity
may be usefully viewed, not so much as a test in itself, but as a broad concept
which is capable of subsuming different categories of cases involving different
factors” (cited with approval in Hercules Managements, supra, at
para. 23, and Cooper, supra, at para. 35). Examples of factors
that might be relevant to the inquiry include the expectations of the parties,
representations, reliance and the nature of the property or interest involved.
51
The second stage of the Anns test requires the trial judge to
consider whether there exist any residual policy considerations that ought to
negative or reduce the scope of the duty or the class of persons to whom it is
owed. In Cooper, McLachlin C.J. and Major J. wrote, at para. 37, that
this stage of the analysis is not concerned with the relationship between the
parties but, rather, with the effect of recognizing a duty of care on other
legal obligations, the legal system and society more generally. At this stage
of the analysis, the question to be asked is whether there exist broad policy
considerations that would make the imposition of a duty of care unwise, despite
the fact that harm was a reasonably foreseeable consequence of the conduct in
question and there was a sufficient degree of proximity between the parties
that the imposition of a duty would not be unfair.
(2) Application of the Anns Test
52
The essence of the appellants’ claim is that the Chief, the Board and
the Province breached a duty to take reasonable care to ensure that the
defendant officers complied with their legal obligation to cooperate with the
SIU investigation. In order for this to give rise to an action in negligence,
it must first be true that the defendants owed the appellants a duty to take
such care. On the analysis above, this requires the Odhavji family to
establish each of the following: (i) that the harm complained of is a
reasonably foreseeable consequence of the alleged breach; (ii) that there is
sufficient proximity between the parties that it would not be unjust or unfair
to impose a duty of care on the defendants; and (iii) that there exist no
policy reasons to negative or otherwise restrict that duty. If the defendants
did not owe such a duty to the appellants, it is plain and obvious that the
actions for negligence cannot succeed.
(i) Police Chief Boothby
53
The conclusion that the harm complained of is a reasonably foreseeable
consequence of the Chief’s conduct is dependent on the prior conclusion that it
is a reasonably foreseeable consequence of an inadequate investigation into the
shooting incident. If it is not reasonably foreseeable that the plaintiffs
would suffer psychiatric harm as a consequence of an inadequate investigation
into the incident, it is not reasonably foreseeable that the Chief’s failure to
ensure that the defendant officers’ failure to cooperate with the SIU would
injure the plaintiffs.
54
It is not immediately clear, in my view, that this initial threshold has
been satisfied. Although it is to be expected that an inadequate investigation
would distress or anger the close relatives of Mr. Odhavji, it is less obvious
that this distress or anger would rise to the level of compensable psychiatric
harm. Nevertheless, I do not think it “plain and obvious” that such harm is an
unforeseeable consequence of the defendant officers’ failure to cooperate with
the investigation. The task might be a difficult one, but the appellants should
not be deprived of the opportunity to prove that the complained of harm is a
reasonably foreseeable consequence of a truncated or otherwise inadequate
investigation into the shooting incident. It is reasonably foreseeable that the
officers’ failure to cooperate with the SIU investigation would harm the
appellants. As the Chief was responsible for ensuring that the officers
cooperated with the SIU investigation, it is reasonably foreseeable that the
Chief’s failure to do so would also harm the appellants.
55
The next question that arises is whether there is sufficient proximity
between the parties that a duty of care may rightly be imposed on the Chief.
It may be that the appellants can show that it was reasonably foreseeable that
the alleged misconduct would result in psychiatric harm, but foreseeability
alone is an insufficient basis on which to establish a prima facie duty
of care. In addition to showing foreseeability, the appellants must establish
that it is just and fair to impose on the Chief a private law obligation to
ensure that the defendant officers cooperated with the SIU. A broad range of
factors may be relevant to this inquiry, including a close causal connection,
the parties’ expectations and any assumed or imposed obligations. See for
example Norsk, supra, at p. 1153; Martel Building Ltd. v.
Canada, [2000] 2 S.C.R. 860, 2000 SCC 60, at paras. 51-52; and Cooper,
supra, at para. 35.
56
In the present case, one factor that supports a finding of proximity is
the relatively direct causal link between the alleged misconduct and the
complained of harm. As discussed above, the duties of a chief of police
include ensuring that the members of the force carry out their duties in
accordance with the provisions of the Police Services Act. In those
instances in which a member of the public is injured as a consequence of police
misconduct, there is an extremely close causal connection between the negligent
supervision and the resultant injury: the failure of the chief of police to
ensure that the members of the force carry out their duties in accordance with
the provisions of the Police Services Act leads directly to the police
misconduct, which, in turn, leads directly to the complained of harm. The
failure of the Chief to ensure the defendant officers cooperated with the SIU
is thus but one step removed from the complained of harm. Although a close
causal connection is not a condition precedent of liability, it strengthens the
nexus between the parties.
57
A second factor that strengthens the nexus between the Chief and the
Odhavjis is the fact that members of the public reasonably expect a chief of
police to be mindful of the injuries that might arise as a consequence of
police misconduct. Although the vast majority of police officers in our
country exercise their powers responsibly, members of the force have a
significant capacity to affect members of the public adversely through improper
conduct in the exercise of police functions. It is only reasonable that
members of the public vulnerable to the consequences of police misconduct would
expect that a chief of police would take reasonable care to prevent, or at
least to discourage, members of the force from injuring members of the public
through improper conduct in the exercise of police functions.
58
Finally, I also believe it noteworthy that this expectation is
consistent with the statutory obligations that s. 41(1)(b) of the Police Services
Act imposes on the Chief. Under s. 41(1)(b), the Chief is under a
freestanding statutory obligation to ensure that the members of the force carry
out their duties in accordance with the provisions of the Police Services
Act and the needs of the community. This includes an obligation to ensure
that members of the police force do not injure members of the public through
misconduct in the exercise of police functions. The fact that the Chief
already is under a duty to ensure compliance with an SIU investigation adds
substantial weight to the position that it is neither unjust nor unfair to
conclude that the Chief owed to the plaintiffs a duty of care to ensure that
the defendant officers did, in fact, cooperate with the SIU investigation.
59
In light of the above factors, I conclude that the circumstances of the
case satisfy the first stage of the Anns test and raise a prima facie
duty of care. If it is reasonably foreseeable that the defendant officers’
decision not to cooperate with the SIU would injure the plaintiffs, a private
law obligation to ensure that the officers cooperate with the SIU is rightly
imposed on the Chief. Consequently, the only issue that is left to consider is
whether there exist any broad policy considerations that ought to negative the prima
facie obligation of the Chief to prevent the misconduct.
60
Counsel for the Chief submits that imposing a private law duty on the
Chief to ensure that the officers cooperate with the investigation would
compromise the independence of the SIU. It is difficult to see how this is the
case, particularly as the Chief already is under a statutory obligation to
ensure such cooperation. Imposing a duty of care on the Chief to ensure that
members of the force cooperate with the SIU would have no bearing on the
capacity of the SIU to determine how or in what circumstances to conduct such
an investigation. Counsel for the Chief also submits that another factor to
consider is the availability of alternative remedies, namely, the public
complaints process that allows members of the public to complain in respect of
the conduct of a police officer. What the appellants seek, though, is not the
opportunity to file a complaint that might result in the imposition of
disciplinary sanctions but, rather, compensation for the psychological harm
that they have suffered as a consequence of the Chief’s inadequate
supervision. The public complaints process is no alternative to liability in
negligence.
61
In short, I believe that it would be inappropriate to strike the action
for negligent supervision against the Chief on the basis that he did not owe
the plaintiffs a duty of care. If the plaintiffs can establish that the
complained of harm is a reasonably foreseeable consequence of the Chief’s failure
to ensure that the defendant officers cooperated with the SIU, the Chief was
under a private law duty of care to take reasonable care to prevent such
misconduct. The cross-appeal against the Court of Appeal’s decision to allow
the action in negligence against Police Chief Boothby to proceed is therefore
dismissed.
(ii) Metropolitan Toronto Police Services Board
62
The plaintiffs do not allege that the Board was under a private law
obligation to ensure that the defendant officers in this appeal cooperated with
the SIU investigation into the allegedly wrongful death of Mr. Odhavji.
Rather, the basis of the action is that the Board breached a duty of care to
ensure that police officers, as a matter of general practice, cooperate with
SIU investigations. The duty of care is owed not to the Odhavjis in
particular, but to the family of a person harmed by the police.
63
The first question to answer is whether it is reasonably foreseeable
that the family of a person harmed by the police would suffer acute anxiety or
depression as a consequence of the Board’s failure to enact additional policies
or training procedures for the purpose of ensuring that police officers
cooperate with the SIU. But, once again, foreseeability alone is
insufficient. Even if it is reasonably foreseeable that the Board’s decision
not to enact additional procedures would exacerbate the allegedly systematic
failure of the police officers to cooperate with the SIU, and that this, in
turn, would cause the families of persons harmed by the police to suffer
psychiatric harm, it still must be determined whether the Board is under a
private law duty to ensure that members of the force, as a matter of general
practice, cooperate with the SIU. For the reasons that follow, I am of the
view that the Board is under no such duty.
64
The first factor that I consider is the lack of a close causal
connection between the alleged misconduct and the complained of harm. As
discussed earlier, the fact that a chief of police is in a direct supervisory
relationship with members of the force gives rise to a certain propinquity
between the Chief and the Odhavjis; the close connection between the Chief’s
inadequate supervision and the officers’ subsequent failure to cooperate with
the SIU establishes a nexus between the Chief and the individuals who are
injured as a consequence of the officers’ misconduct. The Board, however, is
much further in the background than the Chief. Unlike the Chief, the Board
does not directly involve itself in the day‑to‑day conduct of
police officers, but, rather, implements general policy and monitors the
performance of the various chiefs of police. The Board does not supervise
members of the force, but, rather, supervises the Chief (who, in turn,
supervises members of the force). This lack of involvement in the day‑to‑day
conduct of the police force weakens substantially the nexus between the Board
and members of the public injured as a consequence of police misconduct.
65
A second factor that distinguishes the Board from the Chief is the
absence of a statutory obligation to ensure that members of the police force
cooperate with the SIU. As discussed earlier, the express duties of the Chief
include ensuring that members of the force comply with s. 113(9) of the Police
Services Act. Under s. 31(1), the Board is responsible for the provision
of adequate and effective police services, but is not under an express
obligation to ensure that members of the force carry out their duties in
accordance with the Police Services Act. The absence of such an
obligation is consistent with the general tenor of s. 31(1), which provides the
Board with a broad degree of discretion to determine the policies and
procedures that are necessary to provide adequate and effective police
services. A few enumerated exceptions aside, the Board is free to determine
what objectives to pursue, and what policies to enact in pursuit of those
objectives.
66
It is possible, I concede, that circumstances might arise in which the
Board is required to address a particular problem in order to discharge its
statutory obligation to provide adequate and effective police services. If
there was evidence, for example, of a widespread problem in respect of the
excessive use of force in the detention of visible minorities, the Board
arguably is under a positive obligation to combat racism and the resultant use
of excessive force. But as a general matter, courts should be loath to
interfere with the Board’s broad discretion to determine what objectives and
priorities to pursue, or what policies to enact in pursuit of those
objectives. Suffice it to say, the Board’s decision not to enact additional
policies or training procedures in respect of s. 113(9) does not constitute a
breach of its obligation to provide “adequate and effective” police services.
67
Considered against this backdrop, I conclude that the circumstances of
the relationship inhering between the plaintiff and the defendant are not such
that a duty of care to ensure that members of the police force cooperate with
the SIU may rightly be imposed. The appeal against the Court of Appeal’s
decision to strike the action against the Board is dismissed.
(iii) The Province
68
As with the Board, the plaintiffs do not allege that the Province,
through the Solicitor General, was under a private law obligation to ensure
that the defendant officers in this appeal cooperated with the investigation
into the allegedly wrongful death of Mr. Odhavji. Rather, the basis of the
action is that the Province breached a private law obligation to institute
policies and training procedures for the purpose of ensuring that members of the
force, as a matter of general practice, cooperate with the SIU. Owing to the
fact that my conclusions in respect of the action against the Province mirror
my conclusions in respect of the action against the Board, the following
analysis is fairly brief.
69
As above, I am not certain that it is reasonably foreseeable that the
Solicitor General’s decision not to institute further policies and training
procedures in respect of s. 113(9) would cause the families of persons harmed
by the police to suffer compensable psychiatric harm. This, however, is a
matter that is properly addressed at trial. But even if it is reasonably
foreseeable that the failure of the Solicitor General to institute further
policies and training procedures in respect of s. 113(9) would cause the
families of persons harmed by the police to suffer compensable psychiatric
harm, there is insufficient proximity between the parties to conclude that the
Province is under a private law obligation to ensure that members of the force
comply with s. 113(9) of the Police Services Act.
70
Like the Board, the Province is not directly involved in the day-to-day
conduct of members of the police force. Whereas the Police Chief is in a
direct supervisory relationship with members of the force, the Solicitor
General’s involvement in the conduct of police officers is limited to a general
obligation to monitor boards and police forces to ensure that adequate and
effective police services are provided and to develop and promote programs to enhance
professional police practices, standards and training. Like the Board, the
Province is very much in the background, perhaps even more so. The lack of any
direct involvement in the day-to-day conduct of members of the force
substantially weakens the nexus between the Province and the plaintiffs. The
Province simply is too far removed from the day-to-day conduct of members of
the force to be under a private law obligation to ensure that members of the
force cooperate with the SIU.
71
This lack of any direct involvement in the day-to-day conduct of police
officers is compounded by the fact that the responsible minister is not under a
statutory obligation to ensure that police officers cooperate with the SIU.
Under s. 3(2) of the Police Services Act, the Solicitor General is under
a general duty to monitor police forces to ensure that adequate and effective
police services are provided. It is not, however, under an obligation to
ensure that members of the force carry out their duties in accordance with the Police
Services Act and the needs of the community. Although I do not foreclose
the possibility that s. 3(2) might give rise to a statutory obligation to
address widespread or systemic misconduct of a particularly serious nature, the
circumstances of this case do not give rise to such an obligation. The
Solicitor General’s decision not to enact additional policies or training
procedures in respect of s. 113(9) does not constitute a breach of his duty to
ensure that the Board provides “adequate and effective” police services in the
municipality.
72
For the above reasons, it is my conclusion that the Province does not
owe to the plaintiffs a duty of care. Absent a more direct involvement in the
day-to-day conduct of police officers or a statutory obligation to ensure that
members of the force comply with s. 113(9), it would be improper to impose on
the Province a private law obligation to ensure that members of the police
force cooperate with the SIU. The appeal against the Court of Appeal’s
decision to strike the action against the Province is dismissed.
(3) Damages
73
The final factor to consider is the defendants’ submission that the
alleged injuries are non-compensable. Consequently, it is their submission
that even if it is established that the defendants owed the plaintiffs a duty
of care, it is still plain and obvious that the actions for negligence must
fail.
74
As discussed in the context of the actions for misfeasance in a public
office, courts have been cautious in protecting an individual’s right to
psychiatric well-being, but it is well established that compensation for
psychiatric damages is available in instances in which the plaintiff suffers a
“visible and provable illness” or “recognizable physical or psychopathological
harm”. At the pleadings stage, it is sufficient that the statement of claim
alleges mental distress, anger, depression and anxiety as a consequence of the
defendant’s negligence. Causation and the magnitude of psychiatric damage are
matters to be determined at trial.
D. The Court of Appeal’s Costs Award
75
A final issue to consider is the Court of Appeal’s decision to follow
the usual rule that the successful party is entitled to costs. In the
plaintiffs’ submission, it was improper for the Court of Appeal to award costs
to the defendant officers and the Province. By the consent of the parties, a
“no-costs” order was made in respect of the actions against the Chief and the
Board. The plaintiffs submit that they are public interest litigants and
should not have been required to pay costs.
76
Although circumstances might arise in which there are cogent arguments
for departing from the normal cost rules, I have difficulty conceptualizing the
plaintiffs in the present appeal as public interest litigants. In the
plaintiffs’ own submissions, there are typically two types of public interest
litigants: (i) litigants who have no direct pecuniary or other material
interest in the proceedings (e.g., a non-profit organization); and (ii)
litigants who do have a pecuniary interest, but whose interest is modest in
comparison to the cost of the proceedings. The plaintiffs in the present case
do not fit into either category — and thus do not fit their own definition of a
public interest litigant. Indeed, it is difficult to regard a plaintiff who is
seeking several millions of dollars in damages as a public interest litigant.
The fact that the actions involve public authorities and raise issues of public
interest is insufficient to alter the essential nature of the litigation.
77
Moreover, under rule 57.01(1) of the Rules of Civil Procedure,
costs awarded in a proceeding are a matter of discretion for the court.
Consequently, this Court should not interfere with a lower court’s exercise of
that discretion unless there is a clear and compelling reason for doing so.
See for example B. (R.) v. Children’s Aid Society of Metropolitan Toronto,
[1995] 1 S.C.R. 315. In the present case, there is no such basis on which to
interfere with the Court of Appeal’s decision to award costs in accordance with
the usual rule that the successful party is entitled to costs.
V. Disposition
78
In the result, the appeal against the Court of Appeal’s decision to
strike the actions for misfeasance in a public office is allowed. The judgment
of the Court of Appeal is set aside, and an order will issue striking the
phrase “or ought to have known” from the amended statement of claim. The
cross-appeal against the Court of Appeal’s decision to allow the action in
negligence in respect of the SIU investigation against the Chief to proceed is
dismissed, as is the appeal against the Court of Appeal’s decision to strike
the actions in negligence in respect of the SIU investigation against the Board
and the Province. Although success has been divided, the plaintiffs have
achieved a significant success in respect of the actions against the defendant
officers and the Chief. Accordingly, I would award costs to the plaintiffs in
this Court.
Appeal allowed in part and cross-appeal dismissed with costs.
Solicitors for the appellants/respondents on cross-appeal: Falconer
Charney Macklin, Toronto.
Solicitors for the respondents Woodhouse and Gerrits: Borden Ladner
Gervais, Toronto.
Solicitors for the respondent/appellant on cross-appeal the
Metropolitan Toronto Chief of Police David Boothby and the respondent the
Metropolitan Toronto Police Services Board: City of Toronto, Toronto.
Solicitor for the respondent Her Majesty the Queen in Right of
Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Attorney General of Canada:
Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General of British
Columbia: Attorney General of British Columbia, Vancouver.
Solicitors for the intervener the Canadian Civil Liberties
Association: Torys, Toronto.
Solicitors for the intervener the Urban Alliance on Race Relations:
Fasken Martineau DuMoulin, Toronto.
Solicitors for the intervener the African Canadian Legal Clinic:
African Canadian Legal Clinic, Toronto.
Solicitor for the intervener the Mental Health Legal Committee:
Suzan E. Fraser, Toronto.
Solicitors for the intervener the Association in Defence of the
Wrongfully Convicted: Sack Goldblatt Mitchell, Toronto.
Solicitors for the intervener the Innocence Project of Osgoode Hall
Law School: Ruby & Edwardh, Toronto.