Court of Appeal for Ontario

Date: April 18, 2019

Docket: C64373, C65142 & C65143

Judges: Lauwers, Huscroft and Trotter JJ.A.

Between

C64373

Jamie Clark, Donald Belanger and Steven Watts Plaintiffs (Appellants)

and

The Attorney General of Ontario Defendant (Respondent)

C65142

Jamie Clark, Donald Belanger and Steven Watts Plaintiffs (Respondents)

and

Attorney General of Ontario Defendant (Appellant)

C65143

Jamie Clark, Donald Belanger and Steven Watts Plaintiffs (Respondents)

and

Attorney General of Ontario Defendant (Appellant)

Counsel

Lorne Honickman, for appellants Jamie Clark, Donald Belanger and Steven Watts in C64373 and respondents in C65142 and C65143.

Sunil Mathai and Heather Burnett, for the respondent Attorney General of Ontario in C64373 and appellant in C65142 and C65143.

Heard

October 30–31, 2018

On Appeal

On appeal from the order of Justice David G. Stinson of the Superior Court of Justice, dated January 4, 2017, with reasons reported at 2017 ONSC 43.

And on appeal from the order of Justice David G. Stinson of the Superior Court of Justice, dated June 13, 2017, with reasons reported at 2017 ONSC 3683.

By the Court

A. Overview

[1] The Attorney General of Ontario and police officers Jamie Clark, Donald Belanger and Steven Watts have launched three separate appeals from two orders addressing a bifurcated motion.

[2] These appeals arise out of the officers' arrest of two men, Randy Maharaj and Neil Singh, in connection with an armed robbery that occurred in February 2009. Both men alleged that the officers assaulted them during the course of their arrests, and these allegations had significant consequences: charges against Mr. Maharaj were stayed, and although Mr. Singh was prosecuted and convicted, the trial judge's finding that he was assaulted during his arrest led to his conviction being set aside and a stay being entered by this court.

[3] The police officers sued the Attorney General, alleging that the Crown attorneys prosecuting Mr. Maharaj and Mr. Singh were negligent and misfeasant because they failed to adequately investigate the assault allegations and failed to call evidence – in particular, testimony from the officers – to refute the allegations.

[4] On October 20, 2015, the officers served notice on the Attorney General, under ss. 7(1) and 10 of the Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27, of their intention to commence an action. They commenced their action on June 22, 2016, asserting claims against the Attorney General in negligence and misfeasance in public office.

[5] In the statement of claim the police officers allege that they have suffered irreparable harm including "significant depression, emotional trauma and loss of enjoyment of life," and "irreparable damage to their reputations and credibility among members of the judiciary, the Attorney General's Office, the criminal defence bar and the public at large." In particular, the findings of fact made by judges of the Superior Court and the Court of Appeal that the officers "assaulted and tortured accused in their custody is brought forward many times when they are required to testify in court." The consequence for the officers is that "they have been subject to ridicule and contempt and will face this prejudice for the rest of their career."

[6] The Attorney General moved under r. 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to strike the action on the grounds that it is barred by the expiry of the limitation period in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, and under r. 21.01(1)(b) because it disclosed no reasonable cause of action. The Attorney General also moved under rr. 21.01(3)(d) and 25.11 to strike the claims as scandalous and/or vexatious, on the basis that the officers' statement of claim did not contain full particulars and pleaded bald allegations of malice.

[7] The motion judge dismissed the motion to strike based on the limitations issue, struck the negligence claim as disclosing no reasonable cause of action, and allowed the misfeasance claim to proceed. He made no order regarding rr. 21.01(3)(d) or 25.11.

[8] The officers appeal the negligence ruling, and the Attorney General appeals the limitations and the misfeasance rulings.

[9] These appeals raise three issues:

1. Is the action time barred?
2. Does the action lie against the Crown for negligence?
3. Does the action lie against the Crown for misfeasance in public office?

[10] We address each issue after setting out the factual background.

[11] For the reasons that follow, we conclude that the motion judge did not err in dismissing the motion to strike the action as time barred, in striking the negligence claim, and in allowing the officers' misfeasance claim to proceed. The appeals are dismissed.

B. Factual Background

[12] We take these facts from the statement of claim. They are assumed to be true for the purposes of the r. 21 motion, unless they are patently ridiculous or incapable of proof: see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980; Falloncrest Financial Corp. v. Ontario, 27 O.R. (3d) 1, at p. 6.

[13] Sergeant Jamie Clark, Detective Sergeant Donald Belanger, and Detective Sergeant Steven Watts are police officers with the Toronto Police Service. On June 11, 2009, they were working with Hold Up Squad when they arrested Mr. Maharaj and Mr. Singh in connection with an armed robbery that had occurred at Crane Supply Canada, where Mr. Singh worked, in February 2009.

[14] On June 11, 2009, the officers interviewed Mr. Maharaj and Mr. Singh, both of whom provided videotaped statements. Mr. Singh provided a false exculpatory statement to Det. Sgt. Watts and Sgt. Clark. Mr. Maharaj confessed his and Mr. Singh's involvement in the crime to Det. Sgt. Watts and Det. Sgt. Belanger.

[15] On June 12, 2009, during the course of the bail hearing, counsel for Mr. Maharaj advised the court that Mr. Maharaj had suffered injuries during the arrest including visible bumps and scratches under his ear. No suggestion was made at that time that he had been assaulted by the officers, nor was there any complaint that he had sustained a serious rib injury during the arrest or otherwise.

[16] On July 16, 2010, the preliminary hearing commenced. The videotaped statements were admitted into evidence and their voluntariness was not challenged. The officers were called as witnesses and denied suggestions from Mr. Maharaj's counsel that Mr. Maharaj had been assaulted during his arrest – specifically that he had been kicked on the side of the head and beaten by Sgt. Clark and Det. Sgt. Belanger. Mr. Maharaj and Mr. Singh were committed to stand trial.

The charges against Mr. Maharaj are stayed

[17] After the committal, Crown Attorney Sheila Cressman was assigned carriage of the prosecution. On the eve of the trial, Mr. Maharaj brought an application to stay the proceedings against him and to exclude his confession on the ground that the police had beaten him and caused him to suffer a serious rib injury. His counsel provided Ms. Cressman with X-rays of his ribs to support his claim as well as a transcript from the bail hearing.

[18] Ms. Cressman consulted with Dr. Farley Moss, a doctor at the hospital where the X-rays were taken. Dr. Moss confirmed that Mr. Maharaj had an acute rib fracture and advised that a person who had sustained such an injury would find it excruciatingly painful to make any movements with his arms or upper body. Dr. Moss was not asked to review the videotaped statement of Mr. Maharaj following his arrest, in which he is seen moving and lifting his arms.

[19] Ms. Cressman received Mr. Maharaj's medical records from Maplehurst Detention Centre, where he was incarcerated pending trial. The only injuries noted in the medical records were complaints about bruises to his upper arm; there was no indication that Mr. Maharaj ever complained about a rib injury, including in the first few days after the arrest. Ms. Cressman made no inquiries of Maplehurst staff or any of the medical staff who dealt with Mr. Maharaj.

[20] Ms. Cressman consulted with a senior Crown Attorney, Frank Armstrong, about Mr. Maharaj's statement. Without any further investigation, Mr. Armstrong agreed with Ms. Cressman that Mr. Maharaj's statement would not be admissible as it could not be proven to be voluntary in light of the injuries he purportedly sustained during arrest. As a result, on November 22, 2011, the charges against Mr. Maharaj were stayed by Mr. Armstrong before McMahon J. of the Superior Court.

Mr. Singh's conviction and appeal

[21] The trial against Mr. Singh proceeded on November 28, 2011. Counsel for Mr. Singh brought an application to stay the proceedings. Mr. Singh testified that Sgt. Clark assaulted him while Det. Sgt. Watts stood by. Mr. Maharaj testified that he was assaulted by Det. Sgt. Belanger and Sgt. Clark. Ms. Cressman did not call any evidence to challenge the assault allegations.

[22] The officers expected to testify and would have testified in a manner consistent with the evidence they gave at the preliminary hearing. Although Ms. Cressman had assured the officers that they would be called as witnesses, at the end of the first day of the hearing she advised Det. Sgt. Watts that their evidence would not be required. Det. Sgt. Watts expressed concern about the impact this decision would have on the officers, but Ms. Cressman did not change her position.

[23] A jury convicted Mr. Singh of armed robbery and forcible confinement. Justice Thorburn ultimately dismissed his stay application, but nonetheless reduced his sentence in light of the uncontradicted evidence of assault: R. v. Singh, 2012 ONSC 4429, rev'd 2013 ONCA 750, 118 O.R. (3d) 253. She described the officers' conduct as "reprehensible" and characterized the case as one of "police brutality". Her decision and findings were widely reported in the mainstream media and on the Internet, and discussed in internal communications among Crown attorneys, criminal defence lawyers and the judiciary.

[24] Mr. Singh appealed both his conviction and sentence. Before the appeal hearing, the Crown Law Office - Criminal advised the Toronto Chief of Police of its concern about the officers' conduct. The Special Investigations Unit was notified and invoked its mandate. On July 4, 2012, however, the Special Investigations Unit withdrew its mandate after Mr. Maharaj declined to participate in the investigation.

[25] After the Special Investigations Unit withdrew its mandate, the Toronto Police Service Professional Standards Unit reviewed the misconduct allegations and conducted an extensive investigation. On October 31, 2012, the TPS Unit completed its investigation, concluding that the allegations of use of excessive force could not be substantiated.

[26] On October 18, 2013, this court heard Mr. Singh's appeal. Before the hearing, the Crown Attorney handling the appeal, Amy Alyea, met with Det. Sgt. Watts, who advised her of what the officers had learned about Ms. Cressman's conduct. Ms. Alyea took no further steps to investigate, did nothing to repair the damage to the officers' reputation, and did not file a fresh evidence application on appeal. During the appeal hearing, Doherty J.A. asked Ms. Alyea about what had occurred, but she did not inform him or this court about Ms. Cressman's conduct and the supposed "exculpatory findings" regarding the officers' conduct.

[27] On December 12, 2013, the Court of Appeal set aside Mr. Singh's convictions and entered a stay: R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253. Blair J.A. described the officers' conduct as "egregious", writing at para. 43 that:

What occurred here was the administration of a calculated, prolonged and skillfully choreographed investigative technique developed by these officers to secure evidence. This technique involved the deliberate and repeated use of intimidation, threats and violence, coupled with what can only be described as a systematic breach of the constitutional rights of detained persons…

[28] Following the appeal, the Toronto Special Investigations Unit re-opened its investigation, interviewed Mr. Maharaj, and reviewed all records. It ultimately determined that the rib injury post-dated the arrest and concluded that the allegations were not substantiated by the evidence.

[29] On May 26, 2014, the Toronto Chief of Police asked the Ontario Provincial Police to conduct an independent review of the TPS Professional Standards Unit's work. The Ontario Provincial Police investigator concluded in a final report dated April 9, 2015 that the Unit's investigation was thorough and there was no reason to refute its conclusion that the allegations could not be substantiated.

C. Is the action time barred?

[30] By agreement of the parties, the Limitations Act issue was argued as a preliminary question.

[31] The motion judge found that it was a reasonable inference that the trial court and appeal judgments came to the officers' attention at or around the time the decisions were rendered. The officers knew that they had not been called to testify at trial and that the allegations of misconduct had not been contested at trial or on appeal. Despite this knowledge, the action was not commenced until June 22, 2016, well after the date of this court's decision setting aside the convictions and staying the charges against Mr. Singh.

[32] The motion judge found that the claims asserted by the officers were "by no means uncomplicated", as they involved the potential expansion of Crown liability to a new class of claimants, and noted the potentially disputed factual issue concerning the officers' knowledge of their possible claim. In particular, the officers pleaded that they only became fully aware of the tortious nature of the Attorney General's conduct and discovered their causes of action in negligence and misfeasance several months following this court's decision in Singh.

[33] The motion judge acknowledged that, in general, the failure to appreciate the legal significance of discoverable facts does not suspend the running of a limitation period. However, he noted that there is an "arguable exception" for novel claims, citing Boyce v. Toronto Police Services Board, 2011 ONSC 53, at para. 23, aff'd 2012 ONCA 230, leave to appeal refused, [2012] S.C.C.A. No. 265, where Low J. stated:

Section 5(1)(a)(iv) [of the Limitations Act] does not import an idiosyncratic limitation period calibrated by the claimant's familiarity with or ignorance of the law. The test is an objective one. While it is possible to envisage that a new kind of right might arise that has not been hitherto protected, thus making it arguable that a civil proceeding might not be seen objectively as an appropriate means to seek to remedy, a battery causing personal injury is a classic example of the kind of wrong that is appropriate for redress by court action. A citizen is presumed to know the law of the land. [Emphasis added.]

[34] In this case, the motion judge concluded that the exception was engaged. As this court indicated in Beardsley v. Ontario, 57 O.R. (3d) 1, at paras. 21-22, plaintiffs should not routinely be deprived of the opportunity to place a complete factual context before a court where a limitations defence is asserted. He concluded:

[T]he question whether the plaintiffs should have known that a civil remedy was appropriate before they obtained legal advice, is a determination that should not be made at a preliminary stage such as this. At this stage, and based on the record as it currently exists, it is not plain and obvious that the limitation issue will be decided against the plaintiffs.

[35] As a result, the motion judge dismissed the Attorney General's motion to strike the action as statute barred. He noted, however, that he was not determining the limitation period issue with finality:

[M]y decision is based on the directive of the Court of Appeal that pleadings should be closed before the court is asked to decide such an issue, except in situations where it is plain and obvious from a review of the statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired. Save in those exceptional situations, such a motion should only be brought after pleadings have been exchanged, whether by way of a Rule 21 motion (if appropriate) or a motion for summary judgment.

[36] The Attorney General argues that the motion judge erred by applying the wrong test on the motion, by finding that there is an exception to the general rule of discoverability for "novel" claims, and by failing to consider or conduct any analysis regarding the officers' admission that they did not seek legal advice until several months after this court's decision in Singh.

[37] Although we do not disagree with the motion judge's conclusion, the matter can be resolved more simply: these were not the sort of rare circumstances in which it would be appropriate to find that the action was time barred in the context of a r. 21.01(1)(a) motion.

The motion was not properly brought under r. 21.01(1)(a)

[38] The starting point is that an argument that a claim is barred by operation of the Limitations Act is a defence to a claim, and as such it must be pleaded in a statement of defence. Rule 25.07(4) makes this clear: "In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party".

[39] The Attorney General seeks to dismiss the officers' claim on the basis that it is time barred. It may well be, but the Attorney General must specifically so plead and has not done so.

[40] The second problem is that the Attorney General seeks to use a r. 21.01(1)(a) motion to assert the Limitations Act defence that it has not pleaded. That rule involves the determination of a question of law raised in a pleading, and it is clear that the application of the Limitations Act is not a matter of law. This point has been made by this court on several occasions. For example, in Beardsley this court stated as follows, at paras. 21-22:

The motion to strike based on the expiry of a limitation period could only be made pursuant to rule 21.01(1)(a), which provides that a party may move for the determination of a question of law " raised by a pleading ". The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded.

Plaintiffs would be deprived of the opportunity to place a complete factual context before the court if limitation defences were determined, on a routine basis, without being pleaded. Adherence to rules that ensure procedural fairness is an integral component of an appearance of justice. The appearance of justice takes on an even greater significance where claims are made against those who administer the law.

[41] Despite these remarks, this court stated in Beardsley that it would be "unduly technical" to require a statement of defence to be delivered if "it is plain and obvious from a review of the statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired": at para. 21. To the extent that this comment created an exception, it was extremely limited in scope, as the example given makes clear: the expiry of the two-year limitation period under the Highway Traffic Act, R.S.O. 1990, c. H. 8, in connection with a claim for property damage only, in circumstances in which the panel noted that the discoverability rule clearly did not apply.

[42] Although this court has not categorically precluded the use of r. 21.01(1)(a) on limitations matters in subsequent cases, in several cases it has sought to discourage its use. In Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc., 2012 ONCA 850, 113 O.R. (3d) 673, at para. 116, Laskin J.A. said that a defendant could move to strike a claim based on a limitation defence "[o]nly in the rarest of cases" if the defendant has yet to deliver a statement of defence. A fuller explanation was provided in Salewski v. Lalonde, 2017 ONCA 515, 137 O.R. (3d) 762, at para. 42, in which the panel stated that "this court's comment in Beardsley" had "likely been overtaken by the enactment of the Limitations Act, 2002". The court in Salewski further limited the effect of the Beardsley comment by stating that it "was never intended to apply to a case that is legally or factually complex": at para. 42.

[43] Significantly, the panel in Salewski stated at para. 45 that, because the basic limitation period is now premised on the discoverability rule, the application of which raises mixed questions of law and fact, "[w]e therefore question whether there is now any circumstance in which a limitation issue under the Act can properly be determined under rule 21.01(1)(a) unless pleadings are closed and it is clear the facts are undisputed".

[44] The situation contemplated in Salewski – the close of pleadings and the absence of any factual dispute – is very narrow, and this court has continued to discourage the use of r. 21.01(1)(a) motions on limitations matters. In Brozmanova v. Tarshis, 2018 ONCA 523, 81 C.C.L.I. (5th) 1, at para. 19, this court emphasized that "[t]he analysis required under s. 5(1) of the Limitations Act generally requires evidence and findings of fact to determine. It does not involve a 'question of law' within the meaning of rule 21.01(1)(a)." Justice Brown described reliance on r. 21.01(1)(a) to advance a limitation period defence as "a problematic use of the rule", one that risks unfairness to a responding plaintiff: at paras. 17, 23.

[45] Kaynes v. BP, P.L.C., 2018 ONCA 337, 81 B.L.R. (5th) 6, does not undermine this approach. Although in that case this court agreed with the motion judge that the limitation issue could be determined under r. 21.01(1)(a), it did so on the basis of the parties' agreement that there were no material facts in dispute, and in the context of an event-triggered limitation period under the Securities Act, R.S.O. 1990, c. S.5. This limitation period began to run without regard to the plaintiff's knowledge of the facts giving rise to the cause of action, in contrast to the discovery-based limitation period under the Limitations Act.

[46] In this case, the Attorney General seeks to strike the officers' claim under r. 21.01(1)(a) because it is plain and obvious that no additional facts could be pleaded that would alter the conclusion that the limitation period has expired, as in Beardsley. The Attorney General says that the officers' claim makes clear that they learned the material facts to support their claim against the trial Crown no later than October 18, 2013, and against the appeal Crown no later than December 12, 2013, and that both dates are well outside the two-year limitation period. Accordingly, says the Attorney General, there is no need to file a statement of defence.

[47] Salewski says otherwise. The Attorney General seeks to diminish the authority of this case, arguing it is not clear whether this court heard argument on the matter and, in any event, that Beardsley is controlling authority that cannot be overturned except by a five-member panel of this court. Further, the Attorney General denies the existence of a novel claim exception, as suggested in Boyce.

[48] In our view, Salewski is the controlling authority and limitations issues are not properly determined under r. 21.01(1)(a), unless pleadings are closed and the facts are undisputed. But even assuming that the Beardsley comment has not been overtaken by the Limitations Act, this is not an appropriate case in which to apply the exception Beardsley is understood as creating.

[49] We do not say that there is an exception for novel litigation, nor do we say that this is novel litigation in any event. But it is unusual litigation, insofar as it attempts to impose a duty of care on Crown attorneys, and it is litigation against the Attorney General. As this court indicated at para. 22 of Beardsley, adherence to the rules – allowing the parties to have a complete factual record before the court prior to the determination of limitation defences – is a matter of procedural fairness, a matter of "even greater significance where claims are made against those who administer the law."

[50] The Attorney General takes the position that the officers failed to articulate what facts they could plead that would affect the discoverability of their claim for the purposes of the Limitations Act. But the Attorney General is, in essence, attempting to use r. 21.01(1)(a) for a purpose for which it was not designed. There is no obligation on the officers to facilitate its attempt to do so, nor is it appropriate for this court to vindicate a Limitations Act defence on the basis of a record that may well be incomplete.

[51] Accordingly, for these reasons we would uphold the motion judge's decision refusing to strike the officers' claim on the basis that it is time barred.

D. Does the action lie against the Crown for negligence?

[52] The Attorney General brought the motion to strike the negligence claim under r. 21.01(1)(b) of the Rules of Civil Procedure, which provides that "[a] party may move before a judge ... (b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence". The motion judge instructed himself correctly, at paras. 22-23, that the test on a motion to strike is whether it is "'plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action," assuming that the facts as stated in the statement of claim can be proven: Hunt v. Carey Canada Inc., at para. 36. He noted that all facts pleaded in the claim are accepted as true "unless they are manifestly incapable of being proven" (including because they are based on assumptions and speculation) or "patently ridiculous," for which he cited numerous authorities.

[53] It is well-settled that, based on Crown immunity principles, no claim lies against the Crown in negligence, whether it be simple or gross negligence; at common law, an action lies only in malicious prosecution: see Nelles v. Ontario, [1989] 2 S.C.R. 170, at para. 55; Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9, at para. 35; and Miazga v. Kvello, 2009 SCC 51, [2009] 3 S.C.R. 339, at paras. 80-81 ("the trilogy").

[54] In Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214, the Supreme Court of Canada applied its decision in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 awarding damages under the Canadian Charter of Rights and Freedoms, and permitted a claim against the Crown to proceed on the basis of wrongful non-disclosure. At the same time, the court affirmed its holdings in the trilogy that the Crown is immune from actions in negligence commenced by members of the public: at paras. 72, 74, 88, 92-94.

[55] In the face of this wall of authority, the motion judge was asked to privilege the interests of police officers over ordinary citizens by recognizing their claim in negligence against the Crown. He rightly declined this invitation.

[56] Based on the trilogy and Henry, the motion judge accepted that the only claims capable of penetrating the shield of Crown immunity are actions in malicious prosecution and wrongful non-disclosure: at para. 34. However, he relied on the decision in Smith v. Her Majesty the Queen in right of Ontario et al., 2016 ONSC 7222, rev'd Smith v. Attorney General of Ontario, 2018 ONSC 993, 141 O.R. (3d) 309 (Div. Ct.), in which Matheson J. found that this body of cases was not dispositive of whether Crown attorneys are liable to the police for providing negligent legal advice. As Matheson J. said, at para. 136, "[t]he extensive body of law about common law immunity does not focus on lawsuits by the police against Crown Attorneys." (The appeal from the Divisional Court to this court is under reserve.)

[57] After reviewing the cases relied upon by Matheson J., the motion judge concluded, at para. 77:

While a court might later decide that Crown Attorneys should also be immune from negligence claims by police officers, or indeed by any person, I agree with Matheson J. that it is not plain and obvious that such immunity has been recognized in the existing case law. I therefore decline to strike the officers' claim on the basis of common law Crown Attorney immunity.

[58] After the motion judge released his reasons, the Divisional Court overturned the decision of Matheson J., holding that, based on existing jurisprudence, it is plain and obvious that Crown attorneys are immune from any claim based in negligence: Smith v. Attorney General of Ontario, 2018 ONSC 993, 141 O.R. (3d) 309 (Div. Ct.).

[59] Nevertheless, treating the matter as an open question, the motion judge conducted his own analysis under Anns v. Merton London Borough Council, [1978] A.C. 728, and Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, to determine whether Crown attorneys owe a duty of care to police officers.

[60] The Attorney General conceded that the reasonable foreseeability of harm component of the test had been satisfied. The proximity component was contentious. The motion judge found that the officers had established a relationship of proximity, thereby giving rise to a prima facie duty of care, albeit a narrow one.

[61] The motion judge was not asked to find "an open-ended duty owed by Crown attorneys to all investigating officers": at para. 100; rather, the proposed duty of care was limited to allegations of serious misconduct by police officers in the context of Charter motions. As the motion judge concluded, at para. 104:

In my view, it is not plain and obvious that there would be no prima facie duty of care owed by trial Crown Attorneys to police officers to take reasonable care in the course of investigating and defending Charter motions alleging serious misconduct by police officers. Such a proximate relationship could arise from the fact that significant interests of police officers are engaged when they are subject to misconduct allegations on Charter motions that only Crown Attorneys are in a position to defend against. [Emphasis added.]

[62] This aspect of his holding essentially extinguished the negligence claim against the appeal Crown in this litigation. This was based on the motion judge's earlier finding, at para. 93, that the appeal Crown "cannot have caused harm to the officers by failing to take steps that would have had no effect on the outcome of the appeal."

[63] The motion judge qualified the prima facie duty even further. He held that it would not apply to situations where a Crown attorney enters a stay of proceedings. As he explained, at para. 105: "The proposed duty, if available, could only be available where an accused person has brought a Charter motion alleging serious misconduct and a court will be asked to hear evidence and decide the merits of the allegations."

[64] The motion judge proceeded to the second stage of the Anns/Cooper framework and concluded that public policy considerations defeated the recognition of a prima facie duty of care. He conducted his analysis without an evidentiary record, relying instead on the analogous policy considerations discussed in the trilogy and in Henry. Applying these same considerations in the duty of care context, the motion judge found, at para. 137, that there were "valid and important policy reasons not to expand the civil liability of Crown Attorneys in a case such as this." The claim was struck.

[65] We agree with the motion judge's decision to strike the negligence claim. However, we do so for different reasons.

Crown immunity: The existing jurisprudence is dispositive

[66] The essential question before the motion judge was the scope of Crown immunity and whether it should be diluted to permit negligence claims by police officers. This aspect of Crown immunity has been squarely determined by the Supreme Court's malicious prosecution trilogy and Henry. We are not persuaded that this line of authority can be avoided, simply by substituting one class of claimants (former accused persons) for another (police officers). As such, it is plain and obvious that the negligence claim cannot succeed.

[67] The motion should have been decided on this basis alone. There was no need to conduct an analysis under Anns/Cooper. In concluding that a duty of care ought not to be recognized, the motion judge relied on the same important policy considerations that animate the Supreme Court's approach to Crown immunity. Analyzed under the duty of care paradigm, or as a Crown immunity problem, the result must be the same – the claim is doomed to fail.

[68] The motion judge erred in finding that existing case law was not dispositive of the tenability of the plaintiffs' claim in negligence. The motion judge said, at para. 77: "With the exception of Smith, courts have not considered the potential Crown Attorney civil liability to police officers." While this may be so, with respect, this approach was too narrow.

[69] The motion judge was aware of this court's decision in Paton Estate v. Ontario Lottery and Gaming Commission, 2016 ONCA 458, 131 O.R. (3d) 273, in which Pardu J.A. said, at para. 12: "It is not determinative, on a motion to strike, that the law has not yet recognized a particular claim. Rather, the court must ask whether it is plain and obvious that the claim has no reasonable prospect of success." In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, McLachlin C.J. added, at para. 21: "The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial."

[70] The officers argue that their negligence claim should not have been struck at the pleadings stage because the motion judge was deprived of a proper evidentiary record. They submit that their claim is novel and that it is mere speculation that the policy considerations accepted in the trilogy and Henry are applicable to police officers as claimants. We reject both arguments.

[71] We accept that any countervailing policy concerns relied upon to extend the reach of Crown immunity must be more than speculative: see Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132, at para. 57. However, this does not necessarily require an evidentiary record.

[72] This court considered this issue in Arora v. Whirlpool Canada LP, 2013 ONCA 657, 118 O.R. (3d) 113, leave to appeal refused, [2013] S.C.C.A. No. 498, involving an appeal from a refusal to certify a class proceeding because it disclosed no cause of action: see s. 5(1)(a) of the Class Proceedings Act, 1992, S.O. 1992, c. 6. The motion judge had failed to find a duty of care under the Anns/Cooper test. The appellants argued that the motion judge should not have undertaken the policy analysis required under this test in the absence of a full factual record.

[73] Writing for the court, Hoy A.C.J.O. rejected this argument. She held, at para. 89, that "in certain circumstances" a policy analysis can be conducted on a pleadings motion. She raised a consideration that is significant on this appeal, at para. 90: "It is also important to consider what, in a particular case, a factual record could reasonably be expected to add to the court's determination." She observed that counsel did not provide any "meaningful indication" of the nature of the policy evidence it would lead should the matter proceed further: at para. 91. During the oral hearing of this appeal, counsel for the officers was similarly unable to point to any potential evidence that would assist on the issue of policy.

[74] Importantly, Hoy A.C.J.O. noted that the motion judge "had the benefit of a significant body of jurisprudence to assist in answering this precise question": at para. 92. She further observed that the issue was not "entirely novel", and that there was a detailed statutory framework and "abundant academic authority" on the issue: at para. 92.

[75] That is precisely the situation in this case. The issue is not "entirely novel"; the officers simply advance a variation on a familiar theme – the scope of Crown immunity in the context of criminal prosecutions. The Supreme Court has pronounced on this issue on no less than four occasions. On each occasion, the court provided extensive reasons, giving due consideration to the perils of exposing Crown attorneys to negligence claims.

[76] In Henry, the court created a further exception to Crown immunity. That case was also decided at the pleadings stage. There was no new evidence touching on policy implications of allowing the plaintiff's claim to proceed. We now consider Henry in more detail.

The impact of Henry

[77] Henry is significant for its recognition of a new cause of action against the Crown – Charter damages for wrongful non-disclosure in a criminal prosecution. The court rejected the Crown's submission that, if such a cause of action is to be recognized, it should be predicated on a standard that approximates malice. Writing for the majority, Moldaver J. found that while malice did not provide a useful framework for analyzing when wrongful non-disclosure becomes actionable, "the policy underpinnings of this Court's malicious prosecution jurisprudence inform the proper scope of Crown liability for Charter damages in this context": at para. 32. They are also helpful in this case.

[78] The court must undertake four tasks in determining a claim for Charter damages under Ward: (1) assess whether the Charter has been breached; (2) establish why damages are a "just and appropriate remedy"; (3) consider any countervailing factors that could defeat a damages award; and (4) assess the quantum of damages (at para. 4). The second task bears similarities to the second stage of the Anns/Cooper test.

[79] In his analysis in Henry, Moldaver J. focused on the policy considerations recognized in the trilogy, which he recognized as "compelling good governance" concerns: at para. 71. First, appropriate thresholds for liability must ensure that Crown attorneys are not diverted from their important public duties by having to defend against a litany of civil claims. A standard that is too low runs that risk by allowing for an avalanche of civil proceedings. As Moldaver J. said, at para. 72: "The collective interest of Canadians is better served when Crown counsel are able to focus on their primary responsibility – the fair and effective prosecution of crime."

[80] The second good governance consideration is avoiding the creation of a chilling effect on Crown prosecutors (i.e., the fear of civil liability motivating defensive lawyering on the part of Crown attorneys). Moldaver J. said, at para. 73: "The public interest is undermined when prosecutorial decision-making is influenced by considerations extraneous to the Crown's role as a quasi-judicial officer."

[81] Justice Moldaver asserted, at para. 41: "These concerns are very real, and they provide compelling reasons why the availability of Charter damages should be circumscribed through the establishment of a high threshold." This high threshold is reflected in the court's malicious prosecution cases, just as it is in the Supreme Court's jurisprudence on the review of Crown discretion in criminal cases. Pointing to the court's decisions in R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 48, Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 32, and R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 41, Moldaver J. said, at para. 49: "It is a bedrock principle that the exercise of core prosecutorial discretion is immune from judicial review, subject only to the doctrine of abuse of process."

[82] Justice Moldaver then drew a link between the abuse of process doctrine in the public law sphere and the requirement of malice in the private law sphere. He considered the standard reflected in the tort of malicious prosecution to be an "analogue" to the doctrine of abuse of process: at para. 50. At para. 51 of his reasons, Moldaver J. quoted from Miazga, in which Charron J. said, at para. 81, that "incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence" will not underwrite a claim against the Crown.

[83] The court ultimately rejected a malice standard for claims for non-disclosure under s. 24(1) of the Charter. However, the teachings from Nelles and its progeny were safely preserved. As Moldaver J. said, at para. 66:

For these reasons, I reject the application of the malice standard. In doing so, I do not in any way seek to undercut this Court's malicious prosecution jurisprudence. The qualified immunity established in Nelles continues to govern tort actions for malicious prosecution. Furthermore, as I will explain, while the malice standard is not directly applicable, the policy factors outlined in Nelles inform the liability threshold in this case. [Emphasis added.]

[84] Justice Moldaver rejected the application judge's preference for a negligence-based standard. He underscored this approach in the following passages of his judgment, at paras. 74, 76, 92 and 93:

For these reasons, I conclude that good governance concerns mandate a threshold that substantially limits the scope of liability for wrongful non-disclosure. In my view, the standard adopted by the application judge, which is akin to gross negligence, does not provide sufficient limits. As I will explain, a negligence-type standard poses considerable problems, and ought to be rejected.

… However, the policy concerns raised in the malicious prosecution trilogy are not confined to the exercise of core prosecutorial discretion. In my view, those concerns have a broader reach and are implicated wherever there is a risk of undue interference with the ability of prosecutors to freely carry out their duties in furtherance of the administration of justice.

Indeed, the consequences of setting a lower threshold in this context — simple negligence, or even the gross negligence standard adopted by the application judge — would be serious. This type of threshold implicates a duty of care paradigm that ignores the basic realities of conducting a criminal prosecution.

A duty of care paradigm risks opening up a Pandora's Box of potential liability theories. For example, if prosecutors were subject to a duty of care, a claimant could allege that they failed to probe the police forcefully enough to ensure that relevant information was not being suppressed. Such an approach would effectively impose an obligation on prosecutors to "police" the police. [Emphasis added.]

Picking up on this last passage, it is equally unpalatable, and untenable for our criminal justice system, to equip the police with the means to "police" prosecutors.

[85] As Henry so powerfully demonstrates, the Supreme Court remains steadfast in its rejection of negligence-based claims against Crown attorneys. It could not be clearer. The officers attempt to side-step this entire line of jurisprudence by suggesting that the policy considerations are different when it comes to police officers. We disagree.

[86] The first governance factor – the diversion of Crown attorneys from their primary duties – is equally valid when the police are substituted for former accused persons. Allowing for claims based in negligence would expose Crown attorneys to innumerable claims of police officers who feel aggrieved by decisions with which they do not agree. It would not serve the criminal justice system well for busy Crown attorneys to worry about being dragged into court to fight off the grievances of disgruntled police officers. It may well be that, in this case, the actions of the trial Crown had serious consequences for the officers; however, this is no reason to open the floodgates.

[87] The second governance factor – encouraging defensive lawyering by Crown attorneys – also remains valid in this context. Exposure to negligence claims by the police would encourage Crown attorneys to focus on extraneous factors during the course of a prosecution. This would tend to distort principled decision-making, in the same way as would the recognition of negligence claims by former accused persons.

[88] The decision of Crown attorneys to initiate, continue, or terminate a prosecution should be based on whether there is a reasonable prospect of conviction and whether the prosecution is in the public interest: Miazga, at para. 64. The possibility of civil claims by the police would distort these venerable twin duties. It would have a deleterious effect on the administration of justice by undermining the public's faith in the integrity of independent Crown decision-making. Moreover, exposing Crown attorneys to negligence claims by the police may result in prolonged court proceedings in which Crown attorneys make untenable prosecutorial decisions on Charter motions for fear of being sued. It would encourage the litigation of collateral issues, which does not sit well with the realities of finite criminal justice resources and the pressures of firm constitutional time constraints. See R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[89] We are of the view that all of the policy considerations that informed the trilogy and Henry are operative in this case. Although the officers complain that the motion judge's decision was made without a proper record, they point to nothing that might have some bearing on the policy considerations already embedded in the jurisprudence.

[90] Accordingly, on a straightforward application of the Supreme Court's Crown immunity jurisprudence, it is plain and obvious that the officers' claim in negligence must fail. The motion judge was right to strike this aspect of their claim: see Thompson v. Ontario (Attorney General), 113 O.A.C. 82; Gilbert v. Gilkinson, 205 O.A.C. 188, leave to appeal refused, [2006] S.C.C.A. No. 67; and Miguna v. Ontario (Attorney General), 205 O.A.C. 257.

Additional issue raised by the Crown

[91] The Attorney General has persuaded us that the motion judge erred in failing to find that the existing case law on Crown immunity was dispositive of the negligence claim. The Attorney General asks us to go further and "correct" the motion judge's conclusion that there is a relationship of proximity between the police and Crown attorneys. It is unnecessary to do so for the following reasons.

[92] In conducting the second part of his Anns/Cooper analysis, the motion judge found that the same policy considerations that govern the scope of Crown immunity precluded a finding that Crown attorneys owe a duty of care to police officers. Allowing for the fact that he did not need to undertake this analysis, his reliance on these considerations was appropriate. There is a clear correspondence between the factors that animate the scope of Crown immunity and the countervailing factors to be considered at the second stage of the Anns/Cooper framework.

[93] This is illustrated by British case law. In Henry, Moldaver J., at para. 72, referred to Elguzouli-Daf v. Commissioner of Police of the Metropolis, [1995] Q.B. 335, in which the Court of Appeal for England and Wales considered whether the Crown Prosecution Service owed a duty of care to persons it prosecuted. Assuming that reasonable foreseeability of harm could be established, the court found there was no relationship of proximity between prosecuted persons and the Crown Prosecution Service. The court also concluded that it would not be "fair, just or reasonable" to recognize such a duty. Lord Justice Steyn (as he then was) wrote, at p. 349:

I conclude that there are compelling considerations, rooted in the welfare of the community, which outweigh the dictates of individual justice. I would rule that there is no duty of care owed by the C.P.S. to those it prosecutes.

[94] This decision has been cited with approval on many occasions, including by the House of Lords (Customs and Excise Commissioners v. Barclays Bank plc, [2007] 1 A.C. 181, at p. 205; and Jain v. Trent Strategic Health Authority, [2009] 2 W.L.R. 248, at p. 258), and by the Supreme Court of the United Kingdom (SHX v. The Crown Prosecution Service, [2017] 1 W.L.R. 1401, at para. 37).

[95] We also refer to the alternative finding of the Court of Appeal. As Steyn L.J. explained, at p. 349:

I have rested my judgment on the absence of a duty of care on the part of the C.P.S. If my conclusion is wrong, I would for the reasons I have given in dealing with the question whether a duty of care exists rule that the C.P.S. is immune from liability in negligence. [Emphasis added.]

[96] This passage illustrates the considerable correspondence between duty of care policy considerations and the scope of Crown immunity. All roads lead to the same destination – the Crown is not liable to police officers in negligence – and it is unnecessary to embark upon a parallel analytical path only to end up in the same place. A proper articulation of whether and under what circumstances a relationship of proximity exists between Crown attorneys and police requires a fact-specific analysis that is unnecessary in this case. We decline to engage in a hypothetical inquiry that is properly saved for a scenario in which it is required.

Ultimately, the motion judge was right to strike the negligence claim.

E. Does an action lie against the Crown for misfeasance in public office?

[97] The Attorney General's motion to strike the officers' claim for misfeasance in public office was brought under r. 21.01(1)(b) of the Rules of Civil Procedure. The applicable principles were reviewed in the preceding section of this decision.

[98] The elements of the tort of misfeasance in public office were set out by the Supreme Court of Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at paras. 22-23. The motion judge succinctly and accurately detailed the elements of this tort for the category of claim made in this case, at para. 141:

[T]he tort is made out by "a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff." [Odhavji at para. 22] … "[T]he tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff": Odhavji (at para. 23). The tort of "misfeasance in a public office requires an element of bad faith or dishonesty": Odhavji (at para. 28). For a public officer's "conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent within the obligations of the office": Odhavji (at para. 28).

[99] The Attorney General makes two arguments: first, the tort of misfeasance in public office was inadequately pleaded and the motion judge erred in failing to so find; and second, the motion judge erred in failing to find that Crown attorneys are immune from civil liability for misfeasance in public office. We do not accept these arguments, for the reasons that follow.

Misfeasance in public office was adequately pleaded

[100] The motion judge set out the allegations made by the officers and stated, at para. 149:

[T]he officers have pleaded that the Crown Attorneys acted unlawfully by acting in breach of their statutory duties under the Crown Attorneys Act and by breaching their oath of office. In my view, they have pleaded the essential elements of the tort of misfeasance in public office by asserting knowing, deliberate, and unlawful disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiffs.

[101] The motion judge added, at para. 150:

The dispute between the parties largely relates to the proper construction of the statutory duties of Crown Attorneys and whether they were in fact breached in this case. At this stage, a motion to strike, I am not called upon to decide that the plaintiffs can prove their allegations; instead, I am required to assume they can.

[102] We agree with the motion judge's conclusion that the pleading of misfeasance in public office was adequate, as a careful review of the statement of claim reveals. The pleading of this tort focuses in particular on the Crown's conduct of the appeal. This court's reasons were especially hard on the officers, noting that their "conduct in this case might well be characterized as 'torture'". The court noted, at para. 43, to repeat:

What occurred here was the administration of a calculated, prolonged and skilfully choreographed investigative technique developed by these officers to secure evidence. This technique involved the deliberate and repeated use of intimidation, threats and violence, coupled with what can only be described as a systematic breach of the constitutional rights of detained persons - including the denial of their rights to counsel. It would be naïve to suppose that this type of egregious conduct, on the part of these officers, would be confined to an isolated incident.

[103] The statement of claim asserts, in paras. 33 and 34:

During oral argument at the appeal, Justice Doherty, asked Ms. Alyea many questions about what had occurred. She never advised him, or the court, about the new material facts that the Crown had learned about the conduct of Ms. Cressman, and more importantly, the exculpatory findings with respect to the conduct of the police officers which she had come to know.

As such, the Crown, either negligently or deliberately, attempted to protect its own agents conduct, rather than respecting their duty of care and responsibility to the officers and the administration of justice. [Emphasis added.]

[104] The statement of claim states plainly, at para. 47, that Crown counsel "committed the tort of misfeasance in public office by engaging in deliberate and unlawful conduct in their capacity as Crown attorneys, clearly in contravention of their sworn statutory duty." It was "deliberate and unlawful conduct." Further:

The new material facts Ms. Alyea and her superiors became aware of which clearly exonerated the police officers and implicated Ms. Cressman's conduct, were supressed by senior Crown Law Officers and were kept from the judges of the Court of Appeal. [Emphasis added.]

[105] Other critical elements of the tort were also pleaded, at para. 48:

Crown attorneys involved in this case deliberately engaged in conduct that they knew to be inconsistent with the obligations of the Crown attorney and they did so in bad faith, with the knowledge that this misconduct was likely to injure the officers. [Emphasis added.]

[106] The pleading of misfeasance in public office is adequate, properly particularized, and carefully tracks the elements of the Odhavji Estate test. The motion judge did not err in so finding.

Crown attorneys are not immune from civil liability for misfeasance in public office

[107] The Attorney General argues that Crown attorneys are immune from liability for misfeasance in public office, and enlists the same two grounds it deployed in the successful argument that Crown attorneys are immune from liability for negligence in the performance of their duties: the prospect of liability for misfeasance could divert Crowns from their duties and could have a chilling effect on their conduct. These were the policy reasons Moldaver J. rejected in Henry when he extended liability for Charter damages for wrongful non-disclosure in a criminal prosecution.

[108] The motion judge rejected these arguments in relation to the claim for misfeasance in public office.

[109] We conclude that Crown attorneys are not immune from claims of liability for misfeasance in public office. The trigger for liability provides the functional equivalent of the "high liability threshold" Moldaver J. set in Henry for liability for Charter damages for wrongful disclosure.

[110] The nerve of the Supreme Court's decisions in the trilogy and in Henry is the deliberate abuse of authority by Crown attorneys. See Nelles, at paras. 55-56, per Lamer J.; and Proulx, at para. 35, per Iacobucci and Binnie JJ. In Miazga, Charron J. said, at para. 51:

Thus, the public law doctrine of abuse of process and the tort of malicious prosecution may be seen as two sides of the same coin: both provide remedies when a Crown prosecutor's actions are so egregious that they take the prosecutor outside his or her proper role as minister of justice, such that the general rule of judicial non-intervention with Crown discretion is no longer justified. Both abuse of process and malicious prosecution have been narrowly crafted, employing stringent tests, to ensure that liability will attach in only the most exceptional circumstances, so that Crown discretion remains intact.

[111] In Miazga, several parties sought to amend the test from Nelles so that malice could be inferred because "independent evidence of malice presents too high a barrier," but Charron J. rejected these arguments, at para. 52, because they "are ill-conceived and do not account for the careful balancing established in Nelles and Proulx between the right of individual citizens to be free from groundless criminal prosecutions and the public interest in the effective and uninhibited prosecution of criminal wrongdoing." She concluded that "the 'inherent difficulty' in proving a case of malicious prosecution was an intentional choice by the Court, designed to preserve this balance." See also paras. 79-84.

[112] The need to establish abuse of authority was noted by Moldaver J. in Henry, at para. 49, which we repeat for convenience:

It is a bedrock principle that the exercise of core prosecutorial discretion is immune from judicial review, subject only to the doctrine of abuse of process. The presence of bad faith and improper motives may indicate this type of conduct. [Citations omitted.]

[113] Drawing on Henry, there are "compelling good governance" concerns that require a "high liability threshold" in order for the tort of misfeasance in public office to be a tenable cause of action against Crown attorneys. That "high liability threshold" is satisfied by the requirement of the tort of misfeasance in public office set out in Odhavji that the claimants show the presence of bad faith or improper motives. We also note Moldaver J.'s qualification, at para. 83 of Henry, that "there may be case-specific policy concerns that militate against an award, even if the appellant has made out the heightened per se threshold." This qualification applies equally to the tort of misfeasance in public office, but requires cogent evidence to substantiate it.

[114] We agree with the motion judge's conclusion that the pleading of misfeasance in public office was adequate and that Crown attorneys are not immune from claims of liability for misfeasance in public office.

F. Disposition

[115] The appeals are dismissed, with costs as follows, by agreement: on the limitation appeal, the officers are entitled to costs in the amount of $5,000; on the negligence appeal, the Attorney General is entitled to costs in the amount of $10,000; and on the misfeasance appeal, the officers are entitled to costs in the amount of $10,000. Costs figures are all-inclusive.

Released: April 18, 2019

"P. Lauwers J.A."

"Grant Huscroft J.A."

"G.T. Trotter J.A."