CITATION: Patrong v. Banks, 2015 ONSC 6167

DIVISIONAL COURT FILE NO.: 284/15

DATE: 20151005

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: KOFI PATRONG and ROSE PATRONG (Plaintiffs/Responding Parties)

and

WAYNE BANKS, AL COMEAU, JULIAN FANTINO, and TORONTO POLICE SERVICES BOARD (Moving Parties/Defendants)

COUNSEL: Kevin McGivney and David H. Elman, for the Moving Parties

Kelly J. Bryan, for the Responding Parties

HEARD: In Toronto, in writing

E N D O R S E M E N T

(Leave to Appeal to the Divisional Court)

MOLLOY J:

Introduction

[1] The defendants seek leave to appeal to the Divisional Court from the Order of Myers J. dated May 14, 2015, dismissing their motion to strike the Second Fresh as Amended Statement of Claim of the plaintiffs.

[2] The plaintiffs’ action arises from a shooting that occurred in Toronto on April 19, 2004. The plaintiff, Kofi Patrong, and his friend Christopher Hyatt were the victims of a drive-by shooting while they were standing in the backyard of a townhouse complex in the Malvern area of Scarborough. Both were young black males. Both survived. Later, police identified the gunman as Tyshan Riley, a member of a gang known as the Galloway Boyz. The Galloway Boyz were known by police to be rivals of another criminal gang known as the Malvern Crew. However, neither Patrong nor Hyatt were members of the Malvern Crew and they were strangers to Tyshan Riley.

[3] Tyshan Riley was convicted on June 8, 2011 of the attempted murders of Kofi Patrong and Chrisopher Hyatt and sentenced to 18 years, concurrent with a life sentence for the murder of another young man named Charlton.

[4] Kofi Patrong and his mother, Rose Patrong, commenced a civil action against the Toronto Police Services Board, the then Chief of Police, and two senior police officers seeking damages against the police for negligence, breach of s. 7 of the Charter of Rights and Freedoms, and public misfeasance. The plaintiffs pleaded that the police knew Tyshan Riley was dangerous and that he was planning to shoot at young black males whom he perceived to be members of the Malvern Crew. Further, the police had Tyshan Riley under surveillance for substantial periods of time, had grounds to arrest him on other charges, and failed to arrest him.

[5] The defendants moved to strike the “First Amended Statement of Claim” as disclosing no cause of action. For reasons dated September 19, 2013, Chiapetta J. struck out the Statement of Claim as disclosing no cause of action, but with leave to amend. With respect to the negligence cause of action, Chiapetta J. held that the claim failed because there was not a sufficient relationship of proximity between the police and the victim, beyond the threat Riley posed generally to the general public and the residents of Malvern. She distinguished the case of Jane Doe[^1] on the basis that the victim in that case fell within a narrow group of persons with identifiable characteristics who were known by police to be at risk. She also held that the Charter cause of action could not succeed because there is no positive obligation on the police to prevent Charter breaches and because, in any event, Patrong would have to be an identifiable victim before there could be any obligation for the police to protect him from Riley. Finally, Chiapetta dismissed the public malfeasance claim because the constituent elements of the offence had not been pleaded. Specifically, there was no pleading that the police deliberately meant for Riley to be harmed and no pleading that they knowingly acted unlawfully.

[6] The plaintiffs delivered a Second Fresh as Amended Statement of Claim. The defendants brought a motion to strike that version of the Statement of Claim without leave to amend, and specifically sought to have the motion heard by Chiapetta J. For reasons unknown to me, the motion was actually argued before Myers J. on April 21, 2015. He dismissed the motion for Reasons dated May 14, 2015 (except for certain other bases of liability set out in two paragraphs of the pleading that were conceded by the plaintiffs to be without merit).

[7] Justice Myers concluded that the deficiencies noted by Chiapetta J. had been corrected in the new pleading. However, his Reasons did not end there. He carried out a substantial analysis of much of the same case law referred to by Chiapetta J., but with a distinctly different approach. Much of his reasoning can fairly be described as philosophical or public-policy driven.

The Test for Granting Leave to Appeal

[8] The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure is well-settled. It is recognized that leave should not be easily granted and that the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and in each case, both aspects of the two-part test must be met before leave may be granted.

[9] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is in the opinion of the judge hearing the motion “desirable that leave to appeal be granted”. A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd.¸(1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div.Ct.).

[10] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong; that aspect of the test is satisfied if the judge granting leave is satisfied that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J. per Then J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen Div., per Farley J.). In addition, the moving party must demonstrate matters of importance that go beyond the interest of the immediate parties and involve questions of general or public importance relevant to the development of the law and the administration of justice: Rankin v. McLeod Young Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J. per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div.Ct.).

Ruling

[11] The moving party defendants rely on both subsections (a) and (b) of Rule 62.02(4).

[12] The defendants argue that Myers J. reached a different conclusion on substantively the same pleading. Therefore, they assert that there are conflicting decisions as between two judges of this court (Chiapetta J. and Myers J.) with respect to essentially the same pleading, with minor cosmetic changes. There is substantial merit to this argument. Moreover, Myers J. himself referred to the difficulty in reconciling conflicting case law dealing with the issue of the duty owed by police to persons who may be potential victims of crime. In my view, the conflicting decisions criterion is met. Further, it is “desirable” that leave be granted given the different legal approaches taken by the two judges to the same basic factual foundation. This is an issue which could use clarification at the appellate level, both in terms of settling the law and for the benefit of these parties moving forward in this litigation.

[13] I am also of the view that the Rule 62.02(4)(b) test is met. The defendants argue that Myers J. erred in determining that the amendments to the pleading addressed the deficiencies identified by Chiapetta J. and also erred in failing to observe the doctrine of judicial comity by not following the decision of Chiapetta J. Technically, decisions of two judges at the same level of court are not strictly binding as precedent. However, absent a strong reason to depart from a decision of a fellow judge of the Superior Court, such decision should be followed. I do not need to be satisfied that Myers J. in fact failed to follow the principles established by Chiapetta J. I need only be satisfied that there is reason to doubt the correctness of his decision in that regard. The defendants have met that standard.

[14] Further, while perhaps unnecessary to his decision, Myers J. made a number of observations about: the applicability of the Jane Doe case to the factual context of this case; the extent to which the statutory scheme informs the degree of proximity required to establish a private law duty of care; the extent to which the question of proximity is a “subjective moral judgment” that should be replaced by an assessment of “whether it is fair and reasonable that the police ought to compensate the plaintiffs for the losses alleged;” and his view that there was no “overriding public law reason to limit liability in this case.”

[15] There is reason to doubt the correctness of these observations as follows:

• Jane Doe involved an unknown rapist who was attacking a specific type of victim (white females who lived in a second or third floor apartment with a balcony in a specific neighbourhood) and in which the police did not warn the victims so as to use them as bait to lure the rapist. In the case at bar, the assailant was known to the police. The objection is that he was not arrested. The potential range of victims who could have been harmed by Riley was vast. Those distinctions must be recognized.

• The Supreme Court of Canada and the Ontario Court of Appeal have held that where a claim is advanced against a public authority (such as the police) the starting point in considering whether a private law duty of care exists is the applicable statutory scheme.[^2] Myers J. held (at para.9), “It is the height of fiction to romp through these statutes to try to find hints at a non-existent legislative intent concerning the existence or non-existence of a private law duty of care.” To the extent his own analysis followed that view, it is inconsistent with established precedent from the Supreme Court of Canada.

• In paragraph 78 of his Reasons, Myers J. purports to establish an entirely new test for determining liability in cases of this nature, listing a number of factors leading to the question of “whether it is fair and reasonable that the police ought to compensate the plaintiffs for the losses alleged.” He then purported to apply this test in determining that the statement of claim in this case should not be struck. Although he also purported to allow the claim to stand for other reasons, the articulation of this alternative and, in his words, “best” approach, is not consistent with existing case authority.

• In determining that there is no “overriding public law reason to limit liability in this case,” Myers J. cited only Supreme Court of Canada decision in Hill.[^3] That case involved the private law duty to a suspect under investigation. Different policy considerations arise in imposing a duty to victims to arrest a suspected criminal at the earliest opportunity to prevent him from committing other crimes. The Supreme Court noted in Hill that different considerations might apply in the context of different relationships involving the police, specifically mentioning the relationship between the police and a victim.

[16] The issues involved in this case have great importance to the public generally and to the administration of justice. The importance of the issues raised goes beyond the personal interests of the parties. These issues warrant appellate consideration.

[17] Accordingly, I find that the test for leave to appeal is met. Leave to appeal is granted on the issue of whether Myers J. erred in fact and/or law in failing to strike out the Statement of Claim. Although both parties made submissions on the issue of costs of the leave motion, I believe costs should await the determination of the appeal. I therefore defer that issue to the panel hearing the appeal.

MOLLOY J.

Date: October 5, 2015

[^1]: Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 1990 6611 (ON SC), 74 O.R. (2d) 225 (Div.Ct.), affg, (1989) 1989 5300 (ON SC), 58 D.L.R. (4th) 396 (H.C.J.); Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 1998 14826 (ON SC), 39 O.R. (3d) 487 (Gen.Div.).

[^2]: See, for example, Syl Apps Treatment Centre (D.B.) v. Children’s Aid Society of Halton (Region), 2007 SCC 38 at paras. 26-30 and Taylor v. Canada (Attorney General), 2012 ONCA 479 at para 78-79.

[^3]: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at para. 83.