Court File No.: 345/09

Released: 20091028

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Simone Wellington et al (Plaintiffs) v. Her Majesty The Queen in Right of Ontario et al (Defendants)

Before: Karakatsanis J.

Counsel: James Kendik, Lise Favreau, for the defendants, moving parties Peter Rosenthal, for the plaintiffs, responding parties

Heard at Toronto: October 5, 2009

ENDORSEMENT

[1] The moving parties seek leave to appeal the decision of Herman J. dated July 14, 2009 dismissing a Rule 21 motion to strike the Amended Statement of Claim on the basis that it disclosed no cause of action.

[2] The responding parties (the plaintiffs in the action) are the family members of a youth who was killed in a police shooting. They brought an action against the Special Investigation Unit for negligent investigation, claiming that the plaintiffs’ participation in the inquest has been compromised, their grief compounded, and their opportunity to recover damages against police in another action has been lessened.

[3] The motions judge refused to strike the pleading on the basis that it was not plain and obvious that there was no private duty of care owed by the SIU to the victim’s family; a full evidentiary record was needed to determine whether there was sufficient proximity between the plaintiffs and the SIU, including any specific contacts between the SIU and family members and whether there is a causal connection between the inadequate investigation and the harm to the plaintiffs, such that a private law duty of care should be imposed.

[4] The motions judge acknowledged that there were three cases in which courts have concluded that police officers or investigators do not owe a private law duty of care to the victims of crime and their families in conducting an investigation: Norris v Gatien (2001), 56 O.R. (3d) 441 (C.A.); Fockler v Ontario, [2007] O.J. No. 11 (S.C.J.); and Porter v Brampton (City), [2002] O.J. No. 5132 (S.C.J.). She distinguished those cases by noting that the harm complained of in those cases was in the nature of emotional distress and the loss of satisfaction in having someone prosecuted or disciplined. In this case, the harm went beyond emotional distress and included a claim that the plaintiffs were deprived of information and were compromised in their participation in the upcoming inquest and their opportunity to recover damages in a civil action. She noted that the three cases were decided before the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] S.C.J. No. 41 recognized a tort of negligent investigation and concluded that police investigators owed a duty of care to an identified suspect.

[5] In my view the cases referred to above are conflicting cases in principle. Investigations by police officers and investigators of the Special Investigation Unit under the Police Services Act are sufficiently analogous. In Norris, the Ontario Court of Appeal found the plaintiff had no legal interest in the outcome of the investigation or in the prosecution or discipline of the person investigated. Similarly, the failure to lay charges and emotional distress were not sufficient to establish proximity in Fockler. It seems to me that in both of those cases, information that could have been derived from a more fulsome investigation could have affected the opportunity to recover damages in a civil suit for damages against the persons being investigated. In Porter, in addition to emotional distress, the victim’s husband claimed he had been deprived of accurate information and had incurred costs of investigation. All three cases were Rule 21 motions.

[6] The Supreme Court of Canada decision in Hill relates to the suspect of a criminal investigation and specifically states that a fresh Anns analysis both of proximity and policy would be necessary for the relationship between the police and a victim or victim’s family. Although a fresh Anns analysis would no doubt be affected by the Hill decision, Hill explicitly does not overrule these cases. Furthermore, the tort of negligent investigation was already recognized at the time of Norris; the Ontario Court of Appeal referred to and distinguished Beckstead v Ottawa (City) Chief of Police (1997), 37 O.R, (3d) 62 (C.A.).

[7] It is not necessary that I be satisfied that there is serious doubt about the correctness of the motions judge’s decision.

[8] Appellate review to resolve conflicting jurisprudence is desirable in these circumstances. The proposed appeal is important because the issue of whether the SIU and other investigative bodies owe a duty of care to victims and family members has ramifications that go far beyond this case.

[9] Furthermore, several Supreme Court of Canada and Ontario Court of Appeal cases recognize that it is preferable, where possible, to analyze claims alleging negligence against public authorities based on the exercise of discretionary statutory duties at the pleading stage to determine whether there is any possibility that a duty of care could be found to exist to prevent a protracted and expensive trial. Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] S.C.J. No. 38 at para 19; Williams v. Canada, 2009 ONCA 378, [2009] O.J. No. 1819 (C.A.) at para 39. While there is no full factual record in a Rule 21 motion, the pleadings are accepted as true. While it may be that particular interaction between the investigators and the plaintiffs may give rise to a relationship of proximity in the specific circumstances of this case, an Anns analysis may be conducted on the facts pleaded.

[10] I therefore conclude under Rule 62.02(4) (a) that there are conflicting decisions by another judge or court in Ontario and the issues are of general importance to the development of the law and the administration of justice, beyond the interests of the parties, such that it is desirable that leave be granted.

[11] The parties agreed that $2,500 is an appropriate quantum for this leave motion. Costs are reserved to the panel hearing the appeal.

Karakatsanis J.

Released: October , 2009