Court of Appeal for Ontario

Date: 2018-04-16 Docket: C63991 Panel: MacFarland, LaForme and Epstein JJ.A.

Between

John Connelly and Gloria Connelly Plaintiffs (Appellants)

and

Toronto Police Services Board Defendant (Respondent)

Counsel

Cameron Fiske and David Cassin, for the appellants

Fred Fischer and Alison Mintoff, for the respondent

Heard

April 10, 2018

On Appeal

On appeal from the judgment of Justice Kenneth G. Hood of the Superior Court of Justice, dated June 6, 2016.

Reasons for Decision

[1] Pursuant to Rule 21 the motion judge struck out the appellants' claim, without leave to amend, on the basis that it did not disclose a reasonable cause of action. The motion judge found it was plain and obvious that the Toronto Police Services Board (TPSB) owed no duty of care to the appellants. Indeed, except for the issue we briefly discuss below, the motion judge addressed each of the submissions the appellants repeat on this appeal.

[2] At the outset, counsel for the appellants accepted that our panel of three judges is precluded from reconsidering this court's decision in Wellington v. Ontario, 2011 ONCA 274. Instead, they argue that Wellington should be distinguished because the facts in the appellants' case are uniquely different. Counsel, however, concedes that if Wellington cannot be distinguished, the appeal should be dismissed.

[3] Counsel for the appellants argue that Wellington is distinguishable from this case for two reasons: (i) the appellants do not have the rights to certain remedies for victims of crimes identified at para. 53 of Wellington; and (ii) they were actively assisting the police in association with them in the conduct of the investigation. We disagree; these factual differences do not convert the public duty of the police to investigate crime into a private duty owed to the appellants.

[4] At para. 53 in Wellington, the court merely made closing obiter dicta comments to illustrate that concerned family members of victims of crime often have rights to certain remedies. As that court concluded in that paragraph, "Refusing to recognize the existence of a private law duty of care in relation to police investigations does not leave the families of victims or these respondents without appropriate and viable legal recourse."

[5] Regarding the appellants' claim in connection with their assisting the police; this consists of their providing reasons to the police for their desired outcome of the investigation. It does not create any special relationship with the police that converts the duty of care the police owe to the public into a private duty of care to the appellants.

[6] Turning to the substance of the appeal, further to the concession by counsel for the appellants, we concur entirely with the motion judge's reasons for his decision. That is, Wellington provides a full answer to the appellants' appeal. As the motion judge held at para. 10 of his reasons:

… [W]hile the police owe a duty of care to suspects and to a narrow and distinct group of potential victims of a specific threat, the police do not owe victims of crime and their families a private law duty of care in relation to the investigation of alleged crimes: Wellington, at para. 20. Nor does a parent's desire for a thorough police investigation give rise to a relationship of proximity sufficient to ground an action for damages in tort: Wellington, at para. 33. It is clear that the duty being put forward in this case is not novel. It has already been excluded.

[7] Despite the appellants' attempts to characterize their claim as novel, their claim of negligence against the police is not. The law is clear; the police do not owe them a duty of care as the family members of a victim of a potential crime. As the motion judge correctly concluded, it is a category that has already been considered and rejected: see Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 at paras. 27 and 45.

[8] The appeal is dismissed. Costs of the appeal are awarded to the respondent in the agreed upon amount $5,000 inclusive of disbursements and HST.

J. MacFarland J.A.

H.S. LaForme J.A.

Gloria Epstein J.A.