Nissen v. Durham Regional Police Services Board, 2017 ONCA 10

minicounsel

[Indexed as: Nissen v. Durham Regional Police Services Board]

Ontario Reports

Court of Appeal for Ontario

Sharpe, Pepall and van Rensburg JJ.A.

January 9, 2017

134 O.R. (3d) 81 | 2017 ONCA 10

Case Summary

Police — Liability — Plaintiff reporting criminal activity by neighbours' son to police — Police officer promising plaintiff confidentiality — Officer not telling plaintiff that her police interview was being videotaped — Neighbours' sons arrested — Plaintiff's identity and videotaped interview included in Crown disclosure — Neighbours harassing plaintiff to extent that she was diagnosed as having post-traumatic stress disorder — Trial judge not erring in finding that police were liable to plaintiff for breach of confidence — Plaintiff awarded general damages in amount of $345,000 — Damage award not excessive.

The plaintiff informed the police that her neighbours' teenaged son had broken into another neighbour's house and stolen guns. She claimed that she was promised that her report and her identity would be kept confidential. The police officer who took her report did not tell her that her interview was being videotaped. Her neighbours' two sons were arrested. The plaintiff's identity and her videotaped interview were included in the Crown disclosure provided to defence counsel. As a result, the plaintiff was harassed and threatened by her neighbours. She and her family were so distressed that they sold their home and moved to another community, and the plaintiff was diagnosed as having post-traumatic stress disorder. She sued the police for damages. The trial judge found as a fact that the plaintiff was given a promise of confidentiality and anonymity and that the police were liable in damages for breaching that promise. He awarded the plaintiff general damages for emotional and psychological injury. He found that the failure of the police to act after they learned of the neighbours' harassing behaviour was an aggravating factor. He fixed the general damages at $345,000. He also awarded Family Law Act, R.S.O. 1990, c. F.3 damages to the plaintiff's husband in the amount of $65,000 and to her children in the amount of $25,000 each. The defendants appealed.

Held, the appeal should be dismissed.

The trial judge's finding that the plaintiff was promised confidentiality was supported by the evidence and was entitled to deference.

This case should be decided as a civil claim for damages for breach of confidence. The plaintiff was entitled to recover on the basis that the police officer made her a promise of confidentiality and anonymity in exchange for the information she provided, that the promise was breached, and that she suffered damages as a result. She was not required to establish that the information she provided was not readily available from other sources. Nor was it relevant that the police did not follow their own directive for confidential informants.

While the damages awarded by the trial judge were very generous, his reasons did not reveal any error of law or principle that would justify appellate intervention. It was open to the trial judge to find that the failure of the police to take any meaningful steps to protect the plaintiff and her family from the harm they suffered as a result of the wrongful disclosure of her identity aggravated her damages.

Cases Referred To

Statutes Referred To

Authorities Referred To

Hubbard, Robert W., Susan Magotiaux and Suzanne M. Duncan, The Law of Privilege in Canada, looseleaf (Aurora, Ont.: Canada Law Book Inc., 2006)

Procedural History

APPEAL from the judgment of Gray J., [2015] O.J. No. 924, 2015 ONSC 1268 (S.C.J.) for the plaintiffs.

Counsel:

Roger Horst, Rafal Szymanski and Lisa Bruni, for appellants
Margaret A. Hoy, for respondents

The judgment of the court was delivered by

Judgment

[1] SHARPE J.A.:

The central issue on this appeal is: what are the required elements for a claim for damages against the police for breach of a promise of confidentiality made to a citizen reporting criminal wrongdoing?

[2]

Margaret Stack, respondent in this appeal, was awarded damages against the appellants, the Durham Regional Police Services Board and certain named officers (the "police"), for what was pleaded as breach of informer privilege. Ms. Stack went to the police to tell them that she had learned that P.E., the teenaged son of her neighbours, had broken into another neighbour's house and stolen some guns. Ms. Stack asserted that she had asked the police and been promised by them that her identity and the fact that she had reported the theft of the guns would be treated as confidential. Unbeknownst to Ms. Stack, the police videotaped her interview. P.E. and his brother S.E. were charged. A recording of Ms. Stack's interview was included in the disclosure provided to P.E. and S.E. in the criminal proceedings. Ms. Stack was subsequently subjected to threatening and harassing conduct by the parents of P.E. and S.E. Ms. Stack and her family were so distressed by this conduct that they sold their home and moved to another community. As a result of these events, Ms. Stack has felt hopeless, depressed, anxious and fearful. She has been diagnosed as having post-traumatic stress disorder.

[3]

The police denied that Ms. Stack was promised confidentiality or that she enjoyed the status of a confidential informant.

[4]

Following a ten-day trial, the trial judge gave detailed reasons in which he found that the police had promised Ms. Stack confidentiality and that Ms. Stack, her husband and her children were entitled to substantial damages.

[5]

Before this court, the police argue that the trial judge erred in finding that they promised Ms. Stack confidentiality, that the elements necessary for a claim of damages for breach of informer privilege were not made out, and that the damages awarded were excessive.

[6]

For the following reasons, I would dismiss the appeal.

Facts

[7]

Ms. Stack lived with her husband, Chad Nissen, and their two children on a quiet street in Whitby. They had invested considerable time and money on improving their home, and they enjoyed good relationships with their neighbours.

[8]

Ms. Stack sometimes asked P.E., the teenaged son of one of her neighbours, to babysit her children. One day, when Ms. Stack asked the child of another neighbour to babysit, P.E. became angry. Ms. Stack was disturbed by what she regarded as his irrational and frightening behaviour. Ms. Stack subsequently learned from another neighbour that P.E. had broken into the neighbour's home, stolen guns, and with his brother, S.E., taken the guns to school and threatened students.

[9]

Ms. Stack decided that she should inform the police but she did not wish to have her name associated with any investigation. A friend offered to call a police officer he knew without identifying Ms. Stack. She subsequently received a call from Officer Liepsig of the Durham Regional Police, who wanted to talk to her immediately. She was upset that her friend had disclosed her name, but the friend explained that Officer Liepsig had insisted. She called Officer Liepsig, who offered to come to her home. She told him no, that she felt unsafe as the people they were going to talk about lived across the street. In her evidence, Ms. Stack insisted that she emphasized to Officer Liepsig that she did not wish to be identified, that she was frightened of P.E. and S.E., and that the officer promised her over the telephone that her identity would not be disclosed. She said that Officer Liepsig told her that if she came to the police station to discuss the matter he would keep her identity secret, and that she would remain totally anonymous.

[10]

Ms. Stack testified that she was given further assurances of confidentiality when she attended at the station. Officer Liepsig asked her if he could take some notes but did not disclose to her that the interview was being recorded on videotape. At the end of the interview, Ms. Stack asked Officer Liepsig not to let anyone know about their conversation. The videotape confirms that he replied: "[T]his is between you and I. Of course, I have to keep records of this for ourselves. . . That stuff does not get disclosed. It is not made available to the public. You don't have to worry about that." Ms. Stack testified that before leaving the station she again asked to be reassured that no one would know she had made her report, and that again Officer Liepsig told her that it was impossible, even if a request was made under freedom of information legislation. Ms. Stack acknowledged in cross-examination that Officer Liepsig never used the term "confidential informer".

[11]

Officer Liepsig testified that he did not recall Ms. Stack expressing any concerns about confidentiality or anonymity, and denied that he gave her any assurances. He stated that if there had been any assurances of confidentiality, he would not have met Ms. Stack at the police station and he would not have recorded her statement. Officer Liepsig explained the Durham Regional Police Criminal Informant and Agent Management Directive (the "directive"), and testified that he had not followed the steps required to make Ms. Stack a confidential informant within the meaning of the directive. Officer Liepsig testified that he considered Ms. Stack to be a regular witness, not a confidential informer.

[12]

Within a few days of Ms. Stack's police interview, P.E. and S.E. were arrested. Soon after, Officer Liepsig was reassigned, and the task of preparing the Crown brief was assigned to other officers who were unaware that Ms. Stack had been given any assurance of confidentiality. Ms. Stack later learned that her identity and her videotaped interview were included in the Crown's disclosure to P.E. and S.E.'s defence counsel. This disclosure provoked an angry reaction from P.E. and S.E.'s parents, Mr. and Mrs. E. Ms. Stack testified that Mr. E. drove his truck at her causing her to leap from the sidewalk onto the grass behind a tree to avoid being hit by the truck. He then sped away, spinning his wheels so that gravel from the road was propelled towards her.

[13]

Ms. Stack immediately called Officer Liepsig to report the incident and express her concern that a mistake had been made and her identity disclosed, but he did not return her call. Mr. Nissen spoke to Mr. E., who expressed his anger and intention to pay Ms. Stack back for having gone to the police. Mr. Nissen also complained to the police about Mr. E.'s conduct. A police officer, who had not himself spoken with Mr. Nissen, responded by calling Mr. E. to caution him not to contact or tamper with witnesses, and to not say anything that might be interpreted as a threat. The police did not report back to Mr. Nissen.

[14]

Ms. Stack and Mr. Nissen testified that following the truck incident, Mr. and Mrs. E. subjected them to ongoing harassment. They would come to their living room window, driveway or to the front step of their house and glare over at the Stack-Nissen home in a threatening manner. There were also other incidents. P.E. arranged to have a young girl run through Ms. Stack's backyard, screaming and waving her arms. On other occasions, Mr. E. clucked and behaved like a chicken towards Mr. Nissen and Ms. Stack. The harassment became unbearable and, ultimately, Ms. Stack and Mr. Nissen decided to sell their home and move.

[15]

Ms. Stack complained of feeling hopeless and depressed following these events, and she has been diagnosed with post-traumatic stress disorder. Evidence of the significant change in her behaviour and enjoyment of life was provided by her family, friends and Dr. Silver, a psychiatrist who had examined her for the purposes of this case.

Trial Judgment

[16]

The trial judge found as a fact that Officer Liepsig had promised Ms. Stack anonymity and confidentiality. He noted that Officer Liepsig denied giving any such assurances, but observed that Officer Liepsig's notes about his interaction with Ms. Stack were sparse. The trial judge stated, at para. 289:

I think it is highly unlikely that the discussion about anonymity at the end of the interview was the first time the subject was raised. In context, I think it is unlikely that the issue would have been raised for the first time in such a casual way at the end of the interview. It is more likely, in my view, that that discussion was the culmination of an earlier discussion about anonymity. Otherwise, there was no context and the discussion, coming out of the blue, would be unusual. If anonymity was promised before Ms. Stack came to the police station, it is difficult to think of any reason for doing it except as a means to persuade her to come to the station and tell what she knew.

[17]

The trial judge noted that Ms. Stack's concern for confidentiality was confirmed by her friend who had made the initial call to Officer Liepsig and by her complaint to Officer Liepsig immediately upon learning that her identity had been disclosed. He noted that Officer Liepsig did not deny receiving that message, nor having failed to respond. Mr. Nissen also corroborated Ms. Stack's concern about confidentiality. The police did not refute his evidence that he went to the station to complain about the disclosure, and that an officer had apologized to him and said that the disclosure was unacceptable.

[18]

The trial judge noted that the fact that the police did not follow their policy regarding confidential informants suggested that Officer Liepsig had not intended to grant Ms. Stack informer status. However, Officer Liepsig had failed to make that clear to Ms. Stack. The trial judge concluded, at para. 298:

On a balance of probabilities, I hold that Officer Liepsig promised Ms. Stack that her identity would be preserved, and not disclosed, if she came to the police station and provided information about suspected criminal activity. He did not qualify that promise in any way. Thus, both expressly and by implication Ms. Stack became entitled to informer privilege, that is, she was entitled to have her anonymity preserved with respect to her involvement in conveying information to the police.

[19]

The trial judge found that the police owed a common law duty not to disclose the identity of an informer, and that even if the duty was not absolute, reasonable care had not been taken in the circumstances of this case.

[20]

He reviewed the law relating to informer privilege in detail and concluded, at para. 280:

[I]nformer privilege arises if information is provided to the police in exchange for a promise of confidentiality. Mere expectation of confidentiality is not enough. There must be a promise, either express or implied, that confidentiality will be maintained. Where the privilege properly arises, anonymity must be observed absolutely, save only where innocence is at stake. The purpose of the privilege is two-fold: to encourage citizens to report suspected criminal activity; and to protect informers from retribution. Formality is not required. All that is required is a promise of confidentiality in exchange for information. While policies and procedures exist with respect to informer privilege, they do not themselves create it.

[21]

The trial judge rejected the claim for damages arising from the sale of the Whitby home and purchase of the new home, as no expert evidence was called as to loss of value. He also rejected a claim for Canadian Charter of Rights and Freedoms damages, and the claims Ms. Stack and Mr. Nissen had asserted for lost income or lost opportunity.

[22]

The trial judge did, however, award Ms. Stack general damages for emotional and psychological injury. That claim was supported by her own evidence, that of her family and friends, and that of Dr. Silver, who had diagnosed her with post-traumatic stress disorder, an opinion that was not contradicted by the expert retained by the police. The trial judge found that the psychological injury Ms. Stack had suffered rose above the level of ordinary upset or anxiety, and was therefore compensable at law. The trial judge found that the failure of the police to act after they learned of Mr. E.'s harassing behaviour, other than the one brief telephone conversation, was an aggravating factor. He rejected the claim for punitive damages and fixed the general damages in the amount of $345,000. The trial judge also awarded Family Law Act, R.S.O. 1990, c. F.3 damages for loss of guidance, care and companionship, in the amount of $65,000 to Mr. Nissen and $25,000 to each child.

Issues

[23]

The appellants raise the following issues on appeal:

Did the trial judge err in finding that Ms. Stack was promised confidentiality?
Did the trial judge err in finding that Ms. Stack established the necessary elements for a claim for damages?
Were the damages awarded excessive?

Analysis

1. Did the trial judge err in finding that Ms. Stack was promised confidentiality?

[24]

The police argue that the trial judge made a palpable and overriding error in finding that Ms. Stack was promised confidentiality. They argue that it would make no sense for Officer Liepsig to ask Ms. Stack to come to the police station for an interview if she were being treated as a confidential informant.

[25]

We did not call upon counsel for the respondent to address this submission in oral argument, as it is without merit. The trial judge thoroughly reviewed the evidence of Ms. Stack, Officer Liepsig and other witnesses and clearly explained the basis for his finding. He considered and rejected the very point raised by the police on this appeal, namely, that Officer Liepsig would not have conducted the interview at the police station if he considered Ms. Stack to be a confidential informant. The trial judge's finding that Officer Liepsig did promise Ms. Stack confidentiality and anonymity was based upon his assessment of her credibility and reliability as a witness. His finding was supported by the conversation between Ms. Stack and Officer Liepsig at the conclusion of the videotaped statement and by other evidence, including that given by other police officers. It attracts deference in this court, and I see no basis upon which we could interfere.

2. Did the trial judge err in finding that Ms. Stack established the necessary elements for a claim for damages?

[26]

We were not referred to any case in which damages for breach of informer privilege had been awarded. However, in Bisaillon v. Keable, [1983] 2 S.C.R. 60, Beetz J. stated, at p. 96 S.C.R., that although there was no precedent on the point, he would have no difficulty in finding that an action for damages for such a breach would lie. On this appeal, the police do not dispute that proposition.

[27]

However, the police do argue that the trial judge erred by finding that a plaintiff only need prove that the police made a promise of confidentiality in exchange for information in order to establish the privilege. They submit that the elements for a civil claim for damages for breach of a promise of confidentiality by the police will not lie without proof of two other elements, namely, (1) that the information provided must be difficult or impossible to obtain; and (2) that the informer must be likely to suffer harm or danger if his or her identity is disclosed. They also submit that the claim cannot be sustained as the directive relating to confidential informers was not followed.

[28]

In support of the first proposition, the police rely on the following passage from the judgment of the Supreme Court of Canada in R. v. Basi, [2009] 3 S.C.R. 389, 2009 SCC 52, at para. 36:

The privilege arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain. In appropriate circumstances, a bargain of this sort has long been accepted as an indispensable tool in the detection, prevention and prosecution of crime.

[29]

In support of the second proposition, they rely on R. v. Scott, [1990] 3 S.C.R. 979, at para. 31, where Cory J. stated: "Whatever their motives, the position of informers is always precarious and their role is fraught with danger."

[30]

The police submit that as the information Ms. Stack provided was readily available to the police from other sources, that as they had no reason to suspect that she would be in any danger should her identity be revealed and that as they did not follow policy and procedures for creating confidential informer privilege, Ms. Stack has failed to make out the necessary elements for her claim.

[31]

I disagree with the police submission that the trial judge erred with respect to the necessary elements for this claim.

[32]

In my view, this case can and should be decided as a civil claim for damages for breach of confidence. The fundamental point is that, on the findings of the trial judge, Officer Liepsig made a promise of confidentiality and anonymity to Ms. Stack in exchange for the information she provided. The trial judge found that the promise was breached and Ms. Stack suffered damages as a result. Those findings bring this case squarely within the long-recognized cause of action for breach of confidence, and Ms. Stack is accordingly entitled to recover on that basis.

[33]

While other considerations may come into play in a criminal case where the prosecution is resisting disclosure of the identity of a confidential informer to an accused, this is a civil case between the police and an individual who was promised confidentiality. That promise gave rise to a common law and equitable right entitling Ms. Stack to have her identity kept confidential. Her right was not contingent upon other ways the police may have had to get the information she provided, or on what the police thought about the danger she faced.

[34]

Difficulty in obtaining the information and fear of harm to the witness may well be the rationales underlying the doctrine of informer privilege in criminal law, but I am not persuaded that they are necessary elements to sustain the privilege, even in a criminal case. There is no suggestion to that effect in the lengthy discussion of the doctrine in Hubbard, Magotiaux and Duncan, The Law of Privilege in Canada, loose-leaf (Aurora, Ont.: Canada Law Book, 2006). For the purposes of this appeal, I need go no further than saying that there is no reason to qualify the right to sue for breach of confidence by adding additional elements necessary to establish a civil claim for damages. To do so would put the citizen interacting with the police in an impossible situation. Ms. Stack had no way of determining whether the police could obtain from another source the information she was offering. Nor did she have any way of gauging what the police considered to be the risk of harm she faced should her identity be disclosed. She explained her fear of harm to Officer Liepsig, and that fear ultimately proved to be well founded. She was entitled to rely on Officer Liepsig's promise of confidentiality in exchange for her co-operation in giving him the information she had.

[35]

It is, of course, for the police to decide whether or not to make a promise of confidentiality. In making that decision, they will no doubt make an assessment of the value of the information the witness may have to offer, whether they can get the information through other means, and the danger the witness may face if his or her identity is revealed. If the police tell the witness that they will not reveal his or her identity or involvement in order to get information, they should keep their promise, or face the ordinary consequences of violating the assurance they have given. If the police decide that the witness does not deserve or warrant the requested assurance of confidentiality and anonymity, they should clearly say so and refuse to give the witness the requested assurance. That would allow the witness to decide whether to nonetheless give the information and accept the risk of disclosure. Simply put, a citizen in Ms. Stack's situation should be able to rely upon what the police tell her.

[36]

Nor do I accept the submission that because the police did not follow their own directive for confidential informers, Ms. Stack's civil claim for damages is defeated. While I accept that Officer Liepsig may have thought that Ms. Stack was not a confidential informer within the meaning of the directive, I fail to see how that can affect her right to claim for breach of confidence. Her claim rests upon the promise of confidentiality that Officer Liepsig made, and the exchange of information that followed as a result. She had no way of determining whether she fit within the terms of the directive, and it would be obviously unfair to deny her claim on the basis of a directive that had never been explained or brought to her attention.

3. Were the damages awarded excessive?

[37]

The police submit that the damages awarded by the trial judge were excessive. They submit that the trial judge made three errors: (1) he assessed Ms. Stack's damages with reference to awards made in cases that are not analogous; (2) he failed to consider the fact that Ms. Stack had already suffered psychological harm before her identity was disclosed; and (3) he erred in awarding aggravated damages.

Analogous Cases

[38]

The trial judge observed, at para. 368, that it was difficult to fix a reasonable amount for the damages Ms. Stack and her family had suffered. He found that the effect on Ms. Stack had been "severe", that her life had been "irretrievably altered" and he was satisfied by the evidence of Dr. Silver "that it is unlikely that she will ever be the same as she was before these incidents".

[39]

In argument, the trial judge raised the issue of whether the "cap" on personal injury damages applied to damages for psychological injury. Ms. Stack's counsel cited two Supreme Court of Canada decisions in which damages for psychological injury were claimed: Cinar Corp. v. Robinson, [2013] 3 S.C.R. 1168, 2013 SCC 73 and Young v. Bella, [2006] 1 S.C.R. 108, 2006 SCC 3. In both those cases, the Supreme Court held that the "cap" did not apply and awarded damages for psychological injury of $400,000 in Cinar and $430,000 in Young. The trial judge stated that the damages in this case were not as severe as the damages in these two decisions, that something less would be appropriate, and awarded $345,000. As that amount was below the cap, the issue of whether the cap applies did not have to be decided.

[40]

The police submit that that the trial judge placed too much reliance on Cinar and Young, as the harm suffered by the plaintiffs in both Cinar and Young involved more than just psychological injury. Cinar involved a violation of copyright, and Young was a defamation case involving injury to reputation.

[41]

I am not persuaded by this submission.

[42]

First, the trial judge explicitly recognized that the harm suffered in this case was less than that suffered in Cinar and Young.

[43]

Second, in Cinar, the damage award consisted of several components, including a compensatory award of over $600,000 for pecuniary loss and over $1.7 million in disgorgement of profits, both awards for the copyright infringement, and $500,000 in punitive damages. An additional $400,000 was awarded for psychological injury. The award for psychological injury was a discrete award in addition to the damages awarded for the breach of copyright. While the Supreme Court agreed that the damages for psychological injury were analogous to those claimed by the victim of defamation, it is clear that the award was not for loss of reputation. See para. 108: "The product of Robinson's artistic exertions was taken from him and the integrity of his personal creative process was violated, causing deep psychological suffering." I do not see why an award for psychological harm resulting from a copyright infringement could not shed some light on an award for a similar harm arising under a different cause of action.

[44]

Third, while Young was pleaded as both a defamation and negligence action, the claim for defamation was struck and the action proceeded as one for negligence. The psychological injury complained of was not unlike that suffered by Ms. Stack. I do not agree that the fact that a similar harm was caused by a different wrongful act makes Young so different in quality that the trial judge erred in using it as a reference point when assessing damages in this case.

[45]

The trial judge was faced with what he properly recognized to be a difficult task. On the evidence, he found that Ms. Stack had suffered a severe psychological injury that had radically affected her outlook and enjoyment of life. Her friends and her family testified that she was a different person since the injury, and she presented unchallenged expert evidence that she had suffered from post-traumatic stress disorder that was difficult to treat and likely to be permanent. While I view the damages awarded by the trial judge to be very generous, I am not persuaded that his reasons reveal any error of law or principle that would justify appellate intervention.

Pre-existing Condition

[46]

Dr. Silver testified that Ms. Stack's post-traumatic stress disorder was the product of a series of events, including being upset over P.E.'s anger concerning the babysitting assignment, the breakdown of her relationship with P.E., learning that P.E. and his brother had stolen guns and taken them to school to threaten fellow students, and finally the disclosure of her identity as the person who had gone to the police and the resulting threatening and harassing behaviour of Mr. and Mrs. E. The police submit that the trial judge failed to consider the evidence that Ms. Stack's post-traumatic stress disorder was the product of a series of events. They submit that this shows that Ms. Stack is a "crumbling skull" plaintiff, and that the general and Family Law Act damages should be reduced by 10 per cent to 20 per cent on account of the fact that she had already experienced some anxiety and distress before her identity was revealed, and before Mr. and Mrs. E. started their campaign of threats and harassment.

[47]

I am not persuaded by this submission.

[48]

In her closing submissions at trial, counsel for the police made brief reference to the fact that Ms. Stack was upset by earlier events, but did not advance the submission made before us that Ms. Stack should be treated as a "crumbling skull" plaintiff.

[49]

In any event, at para. 255 of his reasons, the trial judge asked himself the following question:

In a case such as this, where psychological injuries are alleged, the question is, as a result of pre-existing conditions, was there a material risk that the plaintiff would have developed her current problems notwithstanding the defendants' conduct?

[50]

At para. 341, he made the following finding in answer to that question:

Had Ms. Stack's identity not been disclosed, she and her family, in all likelihood, would still be living in their dream home on their quiet street in Whitby. Retribution at the hands of the [E.'s] would not have occurred. Ms. Stack would not have suffered post-traumatic stress disorder, the symptoms of which still plague her today. She and her family would not have sold their home and moved to a strange community. Her family would not have suffered along with her.

[51]

In my view, it was open to the trial judge to conclude that the psychological harm Ms. Stack suffered could fairly be entirely attributed to the disclosure of her identity, which in turn led to the retributive conduct of Mr. and Mrs. E. The disclosure and the threats and harassment that followed were the key events that pushed Ms. Stack and her family to the point where they felt they had to move from the neighbourhood, and that caused her severe mental distress. The trial judge was entitled to award damages accordingly.

Aggravated Damages

[52]

The police submit that the trial judge erred in awarding aggravated damages without making a finding of "reprehensible or outrageous conduct".

[53]

The trial judge rejected the claim for punitive damages. He found, at para. 374:

[T]his is not one of those exceptional cases that requires an award of punitive damages for malicious, oppressive and high-handed misconduct that offends the court's sense of decency . . . . The conduct of the defendants does not remotely approach that standard.

[54]

He did, however, note that a damages award must take into account aggravating features, which he described, at para. 367:

First, as noted, the police did nothing whatsoever to preserve Ms. Stack's anonymity. Second, once they became aware of the harassing behaviour by [Mr. E.] they did almost nothing about it. Apart from one brief conversation with [Mr. E.], in which it is doubtful that the importance of the problem was impressed on [Mr. E.], the police did nothing. There was no evidence of any follow-up with [Mr. E.]. Indeed, somewhat inexplicably, no one even followed up with Mr. Nissen or Ms. Stack to advise them that [Mr. E.] had been spoken to.

[55]

I am not persuaded by the police argument that this passage reveals an error of law. Aggravated damages aim not at punishing wrongful behaviour, but at compensating the injured plaintiff for the full extent of the plaintiff's loss. Very often, aggravation of the plaintiff's loss will be caused by outrageous or reprehensible conduct, as it is that quality of the defendant's conduct that causes additional distress or humiliation that calls for compensation not captured by a purely conventional award. I am not persuaded, however, that a trial judge can only take aggravating features into account where there has been outrageous or reprehensible conduct. I agree with the observation made by this court in W. (T.) v. Seo, [2005] O.J. No. 2467, 256 D.L.R. (4th) 1, at para. 70, that "post-incident conduct which aggravates the harm to the victim" may also be taken into account.

[56]

I agree with the police that the first factor mentioned by the trial judge, failure to protect Ms. Stack's anonymity, was not aggravating. However, I agree with the respondents that it was open to the trial judge to find that the failure of the police to take any meaningful steps to protect Ms. Stack and her family from the harm they were suffering as a result of the wrongful disclosure of her identity did aggravate the damages she suffered. The police had promised Ms. Stack confidentiality in order to gain her co-operation. Their duty to her did not cease once they broke that promise. The promise they made as police officers included a duty to protect Ms. Stack from the consequences of wrongful disclosure.

[57]

The police failed to carry out that duty. When Mr. Nissen complained to the police that Mr. E. had driven his truck at Ms. Stack and that Mr. and Mrs. E. were leering at them in a threatening manner, the response of the police was to have an officer who had not himself spoken with Ms. Stack or Mr. Nissen call Mr. E. to tell him that he should not communicate or interfere with witnesses. The officer charged with calling Mr. E. was not told about the truck incident or the threatening behaviour, and did not caution Mr. E. in that regard. Following this brief conversation, the police did not call Ms. Stack or her husband to reassure them that they had spoken to Mr. E. In my view, the trial judge did not err by taking this conduct into account when determining the damages to which Ms. Stack and her family were entitled.

Disposition

[58]

For these reasons, I would dismiss the appeal with costs to the respondents fixed in the amount agreed to by the parties, namely, $40,000, inclusive of disbursements and taxes.

Appeal dismissed.

End of Document