CITATION: Patrong v. Banks, 2016 ONSC 4200
DIVISIONAL COURT FILE NO.: 284-15
COURT FILE NO.: CV-11-439127
DATE: 20160720
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, H. SACHS and WARKENTIN JJ.
BETWEEN:
KOFI PATRONG, ROSE PATRONG
Plaintiffs
(Respondents)
– and –
WAYNE BANKS, AL COMEAU, JULIAN FANTINO, TORONTO POLICE SERVICES BOARD
Defendants
(Appellants)
Marshall Swadron & Dominique Zipper, for the Plaintiffs/(Respondents)
Kevin McGivney & David Elman, for the Defendants/(Appellants)
HEARD at Toronto: May 9, 2016
H. Sachs J.:
Introduction
[1] The Plaintiff, Kofi Patrong, was permanently and seriously disabled at the age of 19 after being shot in a drive-by shooting. In the action with which this appeal is concerned, he and his mother (who is also a plaintiff) seek to hold the police liable for his injuries. In doing so, they allege that were it not for the negligence of the police, the shooting would not have occurred.
[2] The Plaintiffs commenced their claim in November 2011 and amended it on October 17, 2012. On September 9, 2013, Chiappetta J. struck out their Statement of Claim (the “Prior Claim”), finding that it was plain and obvious that the facts as pleaded in the Prior Claim could not support a legal cause of action. She granted them leave to amend the Prior Claim to try and plead facts that could support a legal remedy.
[3] Approximately ten months following the release of Chiappetta J.’s decision, the Plaintiffs delivered the Statement of Claim that is the subject of this appeal (the “Current Claim”). The Defendants again moved to strike, and on May 14, 2014, Myers J. dismissed their motion, finding that the Current Claim had cured the deficiencies identified by Chiappetta J. and that the pleaded relationship of proximity (required to establish a cause of action in negligence) in the Current Claim is analogous to the previously recognized relationship of proximity in the 1990’s case of Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 74 O.R.(2d) 225 (Div. Ct.) (“Jane Doe”).
[4] This is an appeal from that decision. For the reasons that follow, I would dismiss the appeal.
The Current Claim
[5] On April 19, 2004, Kofi Patrong was shot three times by Tyshan Riley in the Malvern neighbourhood of Scarborough in Toronto. At that time, Kofi was a 19-year-old, employed, high school graduate with no criminal record and no associations with any gang or criminal organizations.
[6] At the time of the shooting, Kofi did not know Tyshan Riley. However, the police did. They knew that Riley was an extremely dangerous member of a criminal youth gang known as the Galloway Boyz. They also knew that there was a gang war in progress in the Malvern area between the Galloway Boyz and the Malvern Crew and that Riley was leading “ride squads” (also known as “drive-by shootings”) of Galloway Boyz members into the Central Malvern area, the purpose of which was to shoot with intent to kill young black males that Riley perceived to be Malvern Crew members. Riley was doing so in order to avenge the killing of a former leader of the Galloway Boyz by members of the Malvern Crew.
[7] The Current Claim alleges that by virtue of their previous contact with Kofi, the police knew that Kofi fell within the category of victims that would likely be targeted by Riley. Specifically, he was a young, black male who resided in a 1.25 kilometre radius in Central Malvern where the police knew the shootings were likely to occur. Kofi also dressed in a manner similar to members of the Malvern Crew. In fact, the police had previously questioned him about whether he was a gang member.
[8] The Current Claim alleges that at the time of the shooting, the police had grounds to arrest Riley if he entered the Malvern area except in the presence of his father for employment purposes as he was subject to a conditional sentence and a recognizance that prohibited him from doing so. According to the Current Claim, the Defendants, Comeau and Banks, (members of the Toronto Police Service who were leading an investigation into Riley in respect of previous drive-by shootings) knew of the terms of Riley’s conditional sentence and recognizance and knew that he had breached those terms several times. However, they chose not to arrest Riley or to warn his likely potential victims for fear of jeopardizing the murder investigation they were conducting (which ultimately resulted in Riley being convicted of murder).
[9] On April 14, 2004, the Joint Management Team (“JMT”), a group of senior officers within the Toronto Police Service assigned to review important investigations, met with Banks to review the situation with respect to Riley. The JMT weighed the risk to likely victims against the value of preserving the ongoing murder investigation and decided that Riley should be arrested immediately if he was found in any part of Scarborough.
[10] At the time, Riley was under police surveillance. According to the Current Claim, because Banks did not agree with the JMT’s decision, the decision was not communicated to the surveillance officers.
[11] On April 19, 2004, surveillance officers located Riley at a beauty salon in Scarborough. They observed him get into a car with another male and drive towards Central Malvern at a high rate of speed. They made no attempts to arrest him. Just minutes later, Kofi was shot in the known target area of Central Malvern. At the time, Kofi was dressed in a mode of dress that the police knew to be consistent with the mode of dress of Malvern Crew members.
Justice Chiappetta’s Decision
[12] In her decision dismissing the Prior Claim, Chiappetta J. concluded that Kofi’s circumstances were not analogous to those present in Jane Doe. Nor did a fresh analysis under what has become known as the Cooper-Anns test for determining whether a public authority (such as the police) owes a private law duty of care establish the special relationship of proximity between the police and Kofi required to make it “fair or reasonable to require the defendants while conducting their statutory duties to be more mindful of [Kofi]’s legitimate interests than those of all Malvern residents and the general public.” As explained by Chiappetta J., at para. 46:
The Claim establishes proximity between the police and Riley. However, the Claim fails to establish that [Kofi] had a greater claim to police protection from Riley than any other Malvern resident or member of the public…. [Kofi]’s harm was caused by a third party known to police as a threat to public safety generally, not to [Kofi] specifically. The police had no knowledge of [Kofi] prior to the time of the shooting. The Claim does not contain factual allegations that sufficiently distinguish the relationship between the police and [Kofi] from the relationship between the police and the general public. Police knew Riley would likely commit another crime, but what crime and against whom was entirely unknown.
[13] As already mentioned, after striking the Prior Claim, Chiappetta J. granted the Plaintiffs’ leave to amend.
The Motion Judge’s Decision
[14] The motion judge devoted a section of his reasons to a review of Chiappetta J.’s decision on the Prior Claim. He found that the Current Claim had overcome the deficiencies of the Prior Claim, stating, in part, as follows:
[52] In the new pleading, the plaintiffs have fixed the problems in the prior version of the pleading. They plead specifically in paras. 18 to 20 that the defendants knew that Riley drove into Malvern intending to kill young black males who might be Malvern Crew members. At para. 24 they plead that the police knew Mr. Patrong as they had carded him as many as eight times. Most particularly, in para. 24(h), they plead that just one week prior to the shooting, the police pulled Mr. Patrong over in his car in Malvern because they were looking for gang members. This, the plaintiffs, say, indicates that the police believed that Mr. Patrong was a gang member or at least that he shared characteristics with gang members.
[53] In paras. 23 and 24 of their new claim, the plaintiffs plead that the police knew Mr. Patrong to be a person who shared characteristics of the next likely victim of Riley if they did not arrest him. This distinguished Mr. Patrong from the concern raised by Chiappetta J. that Mr. Patrong had not pleaded that he was known to the police or that he had a greater call on their concern as a potential victim than any Malvern resident or anyone passing through at the wrong time and place for that matter. The new pleading also limits the references to those prior drive-by shootings that involved victims sharing Mr. Patrong’s characteristics and to a much smaller territory in the very heart of Malvern Crew country (closer to ‘near’ an intersection in Jane Doe). In para. 35, the plaintiffs plead that Mr. Patrong was used as bait by the police.
[54] Justice Chiappetta found that the prior claim depended on how the police might guess Riley’s motives. This version of the claim alleges expressly that the police knew the characteristics that Riley looked for and they knew that the plaintiff shared those characteristics (especially as they themselves had mistaken Mr. Patrong for a gang member just days earlier).
[15] Having undertaken this analysis and having engaged in a thorough and thoughtful analysis of the law concerning when a public authority can be sued for negligence at common law, the motion judge concluded, as follows, at para. 79, of his decision:
[T]he Second as Amended Statement of Claim has cured all of the deficiencies that were identified by Chiappetta J. As such, assuming the facts as pleaded to be true and reading the claim generously, I am satisfied that it meets the requirements of Nielsen, Cooper, Hill and Jane Doe. The Patrongs have pleaded into the fiction required by a narrow view of Jane Doe to support a special relationship of proximity between the Patrongs and the defendants. In my view however, the claim should also be allowed to stand because on the facts, if proven true, balancing all of the relevant factors, it is fair, just, and reasonable that the defendants ought to compensate the plaintiffs for the injuries they sustained due to the defendants’ wrongful acts. As in Hill, there is no overriding public policy reason to limit liability in this case. Finally, in my view, given the difficulty of the law in this area, and recognizing that the common law develops and should develop on a case-by-case basis, in no sense can it be said to be ‘plain and obvious’ that the claim as pleaded cannot succeed. Therefore, the motion to strike the Patrongs’ negligence claims is dismissed.
Standard of Review and Applicable Legal Tests
[16] The parties agree that on an appeal concerning a Rule 21 motion to strike, the standard of review is correctness (McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 OR (3d) 429, at para. 38).
[17] On a Rule 21.01(1)(b) motion, a claim will only be struck if it is plain and obvious that the pleading discloses no reasonable cause of action. Unless manifestly incapable of being proven, the facts pleaded are accepted as true. The pleading must be read generously in favour of the plaintiff. If a cause of action has not been previously recognized, this is not fatal; claims should not be struck merely because they are novel (McCreight, at para. 39; Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17, 21, 22; and, Wellington v. Ontario, 2011 ONCA 274, 105 O.R. (3d) 81, leave to appeal ref’d, [2011] S.C.C.A. No. 258).
Issues
[18] The Defendants submit that the motion judge erred in failing to strike out the Current Claim. In doing so, they make the following arguments:
(a) The motion judge erred in reaching a different conclusion than Chiappetta J. on what they assert is substantively the same pleading.
(b) The motion judge erred in concluding that the pleaded relationship of proximity is analogous to the relationship established in Jane Doe.
(c) The motion judge erred in concluding that a prima facie duty of care exists because “it is fair, just and reasonable that the defendants ought to compensate the plaintiffs for the injuries they sustained due to the defendants’ wrongful acts”.
(d) The motion judge erred in concluding that “there is no overriding public law reason to limit liability”.
Did the motion judge err in reaching a different conclusion than Chiappetta J. on substantively the same pleading?
[19] The Defendants argue that the Current Claim is substantively the same as the Prior Claim. While the language may have changed to mimic the language of the pleading advanced in Jane Doe, no further material facts were pled to support a special relationship of proximity between Kofi and the police.
[20] I disagree. As found by the motion judge, the Current Claim includes material facts that are relevant to the proximity analysis that did not appear in the Prior Claim.
[21] Central to Chiappetta J.’s decision to strike the Prior Claim was her finding that the Prior Claim did not plead any facts that would support a finding that Kofi had any greater claim to police protection from Riley than any Malvern resident or member of the public. While the police knew about Riley, they did not have any basis for believing that Kofi would be a potential victim of Riley’s other than that he was a young, black male who lived in the Malvern area.
[22] As noted by the motion judge, in the Current Claim, the Plaintiffs have narrowed the potential group of target victims to “young black males Riley perceived to be Malvern Crew members in the Central Malvern area [a much smaller geographic area].” Further, the Current Claim pleads new facts to establish that the police had had direct contact with Kofi and had first-hand knowledge of Kofi’s characteristics that placed him in the narrower group of likely target victims, including his race, age, residence in the Central Malvern area and mode of dress. The Current Claim also pleads that the police themselves had had concerns about Kofi being a gang member.
[23] According to the Defendants, this assertion of the Plaintiffs that the police knew that Kofi shared the characteristics of the Malvern Crew is contradicted by the fact that during the incident one week prior to the shooting when Kofi and his cousin were “carded” by the police, the police said that they were looking for members of the Galloway Boyz. I disagree. If the individual officers who “carded” Kofi on that one occasion mentioned that they were looking for members of the Galloway Boyz, this does not mean that on a Rule 21.01 motion standard, the Plaintiffs will be unable to prove the material allegation made in the Current Pleading, which is that the police as a whole knew of the characteristics of the Malvern Crew and knew that Kofi shared those characteristics.
[24] The Current Claim also adds new facts relating to the alleged failure on the part of the Defendants to implement an operational decision – specifically, the failure of Banks to communicate to surveillance officers the JMT’s direction to arrest Riley immediately because Banks disagreed with that direction. As correctly noted by the motion judge, the decision of Jane Doe establishes not only a duty to warn but also a duty to protect, which exists independently of the duty to warn.
[25] Thus, while Chiappetta J. and the motion judge reached different conclusions, they did so on different pleadings.
Did the motion judge err in concluding that the pleaded relationship of proximity in the Current Claim is analogous to the relationship established in Jane Doe?
[26] The first step in the Cooper-Anns proximity analysis is to ask whether the relationship at issue is analogous to a relationship already recognized as giving rise or not giving rise to a duty of care. The motion judge found that the Current Claim establishes a relationship analogous to the one between the police and the plaintiff in Jane Doe. The Defendants argue that the motion judge erred in coming to this conclusion since there were considerable differences between the situation in Jane Doe and the one in the case at bar.
[27] In finding that the Current Claim does establish a relationship analogous to Jane Doe, the motion judge turned his mind to the differences between the two cases, noting at para. 67:
[In Jane Doe] there was an unknown assailant and a small group of known likely victims. Here we have the opposite; a known assailant and larger group of potentially unknown victims [although the motion judge notes and accepts as true the Plaintiffs’ plea that he was known to the police]. Moldaver J. did not say that the common law duty to warn and the parallel duty to protect apply only in the former case and not in any other. To the contrary, he said that there even where a duty to warn would be ruled out a duty to protect citizens would still apply. Here, it is doubtful that the police could have warned all possible victims of Riley’s approach or even that Malvern Crew for that matter. Doing so may well have made matters much more dangerous. As found by Moldaver J., that does not need to negate a duty to protect the victims by arresting the assailant. Given that Riley was known and that the order has already been made to arrest him, this case is much stronger for a pure operational negligence claim for failure to arrest than Jane Doe where Moldaver J. had to suggest the existence of a public policy duty to spend more money to identify the assailant before he could be arrested.
[28] As the motion judge states, Moldaver J., writing for the Divisional Court in Jane Doe, found that the pleading in that case survived, not just because of a duty to warn (which he recognized could be considered a policy decision by a public official that normally would not attract liability in tort so long as it was reasonably and responsibly made), but also because of a duty to protect, which could arise even if the policy decision was responsibly made. In other words, having decided not to warn, the police may owe an enhanced duty in the operational area to provide the necessary resources and personnel to protect potential victims of crime.
[29] I agree with the motion judge that while the argument based on the duty to warn in this case may be weaker than the argument in Jane Doe, the argument based on the duty to protect (which involves an operational decision) is stronger.
[30] However, at this stage of the analysis, the task is not to establish that the facts in the two cases are identical or to assess whether the case under consideration will succeed if it goes to trial. It is to determine if the facts pleaded in the case at bar establish a relationship that is analogous to a previously recognized relationship of proximity. To be “analogous” requires that the facts in the present case be “similar in certain attributes, circumstances, relations or uses” (Lesley Brown, ed., The New Shorter Oxford English Dictionary (Oxford: Clarendon Press)) to the facts in Jane Doe.
[31] The relationship of proximity in this case arises from the fact that Kofi was known to the police and known by the police to be part of an identifiable group of potential victims of a violent and dangerous criminal. In this respect, the relationship bears similar attributes to the one in Jane Doe.
[32] The Defendants also submit that a duty of care cannot exist in this case because Kofi was an unintended target of Riley and because the Current Claim defines Riley’s victims based, in part, on Riley’s perception of whether the individuals were Malvern Crew members. With respect to these arguments, I agree with the Plaintiffs that the Current Claim pleads that Kofi was an intended victim of Riley’s in the sense that Riley intended to shoot at Kofi because he was shooting with specific intent at young black males who were dressed like Malvern Crew members in a specific geographic area. Riley was not shooting indiscriminately at members of the public. He was not shooting at the people of white, South Asian or Southeast Asian racial background who lived in the community. I also agree that the extent to which the police knew how Riley would perceive his potential victims is a matter to be explored on discovery, not a reason to strike at the pleadings stage. The Current Claim pleads that Banks and Comeau were leading an intensive investigation into Riley and were closely tracking and examining his pattern of shootings.
[33] The Defendants rely on certain portions of the Supreme Court decision of Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 to support their submission that the motion judge erred in analogizing the relationship in this case to the one in Jane Doe. The Supreme Court states, at para. 27:
I note that Jane Doe is a lower court decision and that debate continues over the content and scope of the ratio in that case. I do not purport to resolve these disputes on this appeal. In fact, and with great respect to the Court of Appeal who relied to some extent on this case, I find the Jane Doe decision of little assistance in the case at bar.
[34] In considering this comment, it is important to note that Hill v. Hamilton was a case dealing with the duty of care owed by the police to a suspect under investigation, not the duty of care owed by the police to potential victims of crime. In fact, the majority made it clear that it was not considering the latter relationship, which is the relationship at issue in Jane Doe and in the case at bar.
[35] While obiter, the comment also highlights that there is considerable debate about the “content and scope” of Jane Doe such that the law surrounding the duty of care owed by police to potential victims of crime is by no means settled. Causes of action in areas of the law that have yet to be fully developed should not be struck at the pleadings stage. To repeat again, the words of the motion judge, at para. 79:
Finally, in my view, given the difficulty of the law in this area, and recognizing that the common law develops and should develop on a case-by-case basis, in no sense can it be said to be ‘plain and obvious’ that the claim as pleaded cannot succeed.
Did the motion judge err in concluding that a prima facie duty of care exists and did he err in concluding that there is no overriding public law reason to limit liability?
[36] Under the Cooper-Anns test, these questions need only be considered if there is a finding that the relationship at issue is not analogous to a relationship already recognized as giving rise or not to a duty of care. Thus, given my finding that the motion judge did not err when he found that the Current Claim cured the deficiencies identified by Chiappetta J. and that the asserted duty of care was analogous to the one established in Jane Doe, there is no need to address these issues on this appeal.
Conclusion
[37] For these reasons, the appeal is dismissed. The Plaintiffs are entitled to their costs of this appeal and their costs of the motion for leave to appeal, which we fix in the amount of $17,000, all inclusive ($12,000 for the appeal and $5,000 for the motion for leave to appeal).
THEN J.
H. SACHS J.
WARKENTIN J.
Released: 20160720
CITATION: Patrong v. Banks, 2016 ONSC 4200
DIVISIONAL COURT FILE NO.: 284-15
COURT FILE NO.: CV-11-439127
DATE: 20160720
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, H. SACHS and WARKENTIN JJ.
BETWEEN:
KOFI PATRONG, ROSE PATRONG
Plaintiffs
(Respondents)
– and –
WAYNE BANKS, AL COMEAU, JULIAN FANTINO, TORONTO POLICE SERVICES BOARD
Defendants
(Appellants)
REASONS FOR JUDGMENT
H. SACHS J.
Released: 20160720