Norris et al. v. Gatien et al. [Indexed as: Norris v. Gatien]

56 O.R. (3d) 441

[2001] O.J. No. 4415

Docket No. C34213

Court of Appeal for Ontario

Osborne A.C.J.O., Austin and Laskin JJ.A.

November 15, 2001

• Application for leave to appeal to the Supreme Court of Canada was dismissed with costs July 11, 2002 (L'Heureux-Dubé, Bastarache and Binnie JJ.). S.C.C. File No. 29054. S.C.C. Bulletin, 2002, p. 1040.

Torts -- Negligence -- Duty of care -- Police officers -- Cyclist fatally injured when struck by vehicle driven by Ontario Provincial Police officer -- Cyclist's family members brought action against driver and O.P.P. -- Family also sued municipal police officer who investigated accident for damages arising from that officer's negligent investigation -- Statement of claim struck out as against municipal police officer on ground that it disclosed no cause of action against him -- Municipal police officer owed no private law duty of care to plaintiffs.

Police -- Negligence -- Cyclist fatally injured when struck by vehicle driven by Ontario Provincial Police officer -- Cyclist's family members brought action against driver and O.P.P. -- Family also sued municipal police officer who investigated accident for damages arising from that officer's negligent investigation -- Statement of claim struck out as against municipal police officer on ground that it disclosed no cause of action against him -- Municipal police officer owed no private law duty of care to plaintiffs.

A cyclist died after being struck by a motor vehicle driven by an Ontario Provincial Police officer, L. The deceased's family brought an action against L and the O.P.P. They also sued G, the municipal police officer who investigated the fatal accident. Essentially, they alleged that while G did not contribute to the deceased's death, his negligence in investigating that death resulted in the failure of the criminal prosecution against L on charges of impaired driving causing death and driving over 80. Separate proceedings were then commenced against L under the Police Services Act, R.S.O. 1990, c. P.15. The plaintiffs alleged that these later hearings would not have been necessary if the criminal trial had gone ahead, and that the proceedings caused or contributed to the exacerbation and continuation of the emotional stress, pain and suffering of the plaintiffs. G brought a motion to strike out the statement of claim against him as disclosing no reasonable cause of action. The motion was granted.

The plaintiffs appealed.

Held, the appeal should be dismissed.

It was not in the reasonable contemplation of G that carelessness on his part might cause damage to the plaintiffs. The plaintiffs had no legal interest in the investigation or prosecution of L. The investigation and prosecution were matters of public law and public interest. Had L been convicted, the plaintiffs may have derived some personal satisfaction from the conviction, but that satisfaction would have been a purely personal one, with no reality in law. Nor did the failure to reach that verdict have any consequence for the plaintiffs sounding in damages. In the circumstances, G did not owe a private law duty of care to the plaintiffs.

APPEAL from an order striking out a statement of claim as against the respondents.

Beckstead v. Ottawa (City) (1997), 1997 1583 (ON CA), 37 O.R. (3d) 62, 155 D.L.R. (4th) 382 (C.A.); Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 1990 6611 (ON SC), 74 O.R. (2d) 225, 40 O.A.C. 161, 72 D.L.R. (4th) 580, 1 C.R.R. (2d) 211, 5 C.C.L.T. (2d) 77, 50 C.P.C. (2d) 92 (Div. Ct.) (sub nom. Jane Doe v. Board of Police Commissioners of Metropolitan Toronto); George v. Beaubien, [1998] O.J. No. 4022 (Gen. Div.), distd Other cases referred to Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105 (sub nom. Hunt v. T & N plc); Kamloops (City) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2, 66 B.C.L.R. 273, 10 D.L.R. (4th) 641, 54 N.R. 1, [1984] 5 W.W.R. 1, 29 C.C.L.T. 97, 26 M.P.L.R. 81; Toronto Dominion Bank v. Deloitte Haskins & Sells (1991), 1991 7366 (ON SC), 5 O.R. (3d) 417, 8 C.C.L.T. (2d) 322 (Gen. Div.) Statutes referred to Family Law Act, R.S.O. 1990, c. F.3 Police Services Act, R.S.O. 1990, c. P.15 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01

Lawrence Greenspon and Blair Crew, for appellants. Mark Charron, for respondents Constable Mark Gatien and The City of Nepean.

The judgment of the court was delivered by

[1] AUSTIN J.A.: -- The plaintiffs appeal from the order of Cunningham J. made on a motion by the defendants Mark Gatien ("Gatien") and the City of Nepean ("Nepean") under rule 21.01, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to strike out the statement of claim as against them upon the ground that it discloses no cause of action against them. The appeal considers the question of liability for damages for negligent investigation.

[2] On August 22, 1994, Serge Loranger ("Loranger"), an officer of the Ontario Provincial Police ("O.P.P."), while driving an O.P.P. vehicle, struck and killed Shayne Norris ("Norris"), a bicyclist. The plaintiffs are the father, stepmother, mother, sister and grandmothers, respectively, of Norris. They commenced this action for damages with respect to his death.

[3] Loranger was sued in negligence as the driver of the motor vehicle which caused Norris' death. The O.P.P. was sued as the lessee of the vehicle and the employer of Loranger, and Deb Consultants Ltd. was sued as the owner of the vehicle. The motion and this appeal do not involve those defendants.

[4] Gatien is a police officer with the City of Nepean. He was sued for negligence in his investigation of the death of Norris, and Nepean was sued as his employer. The allegations against Gatien are as follows:

The Defendant, The City of Nepean Police, generally and the Defendant, Constable Mark Gatien, specifically respectively owed a duty to enforce the criminal law. The Defendant, Constable Mark Gatien, for whose actions the Defendant, The City of Nepean Police, are responsible was negligent in the performance of this duty, the particulars of which are as follows:

a. he failed to determine the circumstances of the traffic accident upon being made aware of the collision and the significant damage to the vehicle driven by the Defendant, Constable Serge Loranger;

b. he failed, despite being instructed to do so, to administer an A.L.E.R.T. demand to the Defendant, Constable Serge Loranger, in circumstances where this was warranted;

c. he failed to administer either a demand for a breathalyser test nor the breathalyser test itself in circumstances where this was warranted;

d. he failed to collect evidence properly, and/or in a timely way and/or at all;

e. he failed to provide the Defendant, Constable Serge Loranger, with his rights to counsel pursuant to the Charter of Rights and Freedoms.

As a result of the negligence of the Defendant, Constable Mark Gatien, the Plaintiffs emotional distress, pain and suffering has been exacerbated. Further, the specified negligence constituted a serious failure to facilitate and support the eventual prosecution of the Defendant, Constable Serge Loranger, as it was the Defendant, Constable Mark Gatien's, duty to do.

The Plaintiffs plead that the conduct of Defendant, Constable Mark Gatien, and the Defendant, The City of Nepean Police Services Board, was such as to warrant an award of punitive, aggravated and/or exemplary damages.

[5] The allegations respecting damages are that:

As a result of the death of the Deceased, the Plaintiffs have suffered and will continue to suffer serious loss arising from the loss of support, services, guidance, comfort, care and companionship that they would otherwise received from the Deceased.

As a result of the death of the Deceased, the Plaintiffs have suffered mental anguish, their enjoyment of life was substantially lowered and they have been unable to carry on their normal social, family and recreational activities.

[6] The motion judge allowed the motion and struck out the statement of claim as against Gatien and Nepean. He endorsed the record as follows:

The Defendants Gatien and the City of Nepean bring this motion under R. 21 to strike the Statement of Claim as against them as it discloses no reasonable cause of action. The test, I accept, is that it must be "plain and obvious" that the plaintiff could not succeed against these defendants. As I must under R. 21, I have taken the material facts as pleaded as having been proved. This is a s. 61 FLA claim and all the claimants are derivative claimants. The action arises out of the death of Shayne Norris caused by a motor vehicle accident on August 24, 1994 in which he was, as pleaded, negligently run down by the defendant Loranger. There is no pleading that the conduct of Gatien (for whom Nepean is responsible) caused the death of Shayne Norris, or was in any way responsible for it. All actions of Gatien, as pleaded, were subsequent to the accident and by then Shayne Norris was deceased. The rights of the s. 61 claimants arose before any actions of Gatien, as pleaded, occurred. There is no pleading suggesting any antecedent act on the part of Gatien. There is nothing pleaded suggesting that Gatien in any way caused or contributed to the death of Shayne Norris. It is from that death that the dependants' cause of action arises. Nevertheless it is argued that the dependants have a cause of action as a result of the manner in which Gatien carried out his investigation. I do not accept that argument and I can find no case to support that proposition. Beckstead v. Ottawa, 37 O.R. 3rd, p. 62 in my view does not assist the Plaintiffs. Even if there is a tort of negligent investigation as Beckstead appears to stand for, there is no private duty of care owed by Gatien towards the plaintiffs. The duty owed by police officers is to investigate and prevent crime. The duty is a public one owed to the public at large, not to individuals privately. If as in Miller (Litigation Guardian of) v. Wiwchairyk, there was a pleading of some antecedent negligent act the situation might be different. Here the alleged negligence of Gatien occurred subsequent to the facts giving rise to the main cause of action. In my consideration of the issue of public v. private duty, I have carefully considered City of Kamloops v. Neilsen (1984), 10 D.L.R. (4th) p. 641 (SCC). The plaintiff's claim against Gatien and Nepean is without foundation. Even if such a duty existed, as I have found it did not, there is no causal connection between the damages alleged and the acts of these Defendants. Accordingly, the Amended Statement of Claim as it relates to Mark Gatien and the City of Nepean is struck.

If counsel cannot agree on costs, I am be spoken to [sic].

[7] The plaintiffs appeal from that order.

[8] The action as pleaded is a derivative one. The statement of claim reads in part as follows:

1. The Plaintiffs claim, pursuant to section 61 of the Family Law Act, R.S.O. 1990, c. F.3, and amendments thereto, the following:

a. As to Wayne Russell Norris (father):

i General damages in the amount of $75,000.00;

It is clear from his reasons that the motion judge treated the claim as a derivative one.

[9] During oral argument on the appeal, however, plaintiffs' counsel took the position that the claim asserted against Gatien and Nepean was not under the Family Law Act, R.S.O. 1990, c. F.3 but was a free-standing claim, separate and apart from the right of action created by that Act and its predecessors. Nothing turns on this change in position and nothing further need be said about it.

[10] It is reasonably clear from the statement of claim that the claim against Gatien and Nepean is not for damages for causing the death of Norris. Neither of them caused or contributed to his death on the facts as pleaded. Rather the plaintiffs' claim is for acts and omissions of Gatien which are alleged to have occurred after Norris' death and which are said to have exacerbated the distress caused by the death of Norris. Specifically, it is alleged that Gatien was negligent as set out in para. 4 above.

[11] Counsel for the appellants and respondents are in agreement as to the law. They disagree, however, as to its application to the facts of this case.

[12] A claim such as this should not be dismissed at this early stage unless it is plain and obvious that it discloses no reasonable cause of action: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 43 C.P.C. (2d) 105 per Wilson J. at p. 980 S.C.R., p. 126 C.P.C.

[13] The fact that the claim may present a novel situation is irrelevant. (Hunt, supra, per Wilson J. at p. 980 S.C.R., p. 126 C.P.C.) On a motion under rule 21.01 the statement of claim is to be read generously with allowance for inadequacies due to drafting deficiencies: Toronto Dominion Bank v. Deloitte Haskins & Sells (1991), 1991 7366 (ON SC), 5 O.R. (3d) 417, 8 C.C.L.T. (2d) 322 (Gen. Div.) per Blair J. at p. 419 O.R.

[14] Counsel for the respondents in his factum objects to the inclusion in the appellants' factum of facts not included in the statement of claim. Applying Toronto Dominion Bank v. Deloitte, supra, however, the plaintiffs' claim may fairly be stated as alleging that while Gatien did not contribute to Norris' death, Gatien's negligence in investigating that death resulted in the failure of the prosecution against Loranger on charges of impaired driving causing death and operating a motor vehicle with a blood-alcohol concentration exceeding .80. Separate proceedings were then commenced against Loranger under the Police Services Act, R.S.O. 1990, c. P.15. It is alleged that these later hearings would not have been necessary if the criminal trial had gone ahead. It is also alleged that these proceedings and the appeal therefrom caused or contributed to the exacerbation and continuation of the emotional stress, pain and suffering of the plaintiffs.

[15] Both counsel recognize that police officers constitute a public authority and are normally engaged in carrying out a public law duty. The question here is whether, in the circumstances, Gatien owed a private law duty of care to the plaintiffs.

[16] The test for determining that question was set down by Wilson J. in Kamloops (City) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2, 10 D.L.R. (4th) 641 at pp. 10-11 S.C.R., pp. 662-63 D.L.R. as follows:

(1) is there a sufficiently close relationship between the parties (the local authority and the person who has suffered the damage) so that, in the reasonable contemplation of the authority, carelessness on its part might cause damage to that person? If so,

(2) are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?

(Emphasis added)

[17] In my view, the resolution of the instant motion is to be found in the words of the first question, namely, "in the reasonable contemplation of the authority [Gatien/Nepean], might carelessness on [their] part cause damage to that person [the plaintiffs]?" The answer to that question must be "no".

[18] This is so because the plaintiffs had no legal interest in the investigation or prosecution of Loranger; that investigation and prosecution were matters of public law and public interest. Nor had the plaintiffs any legal interest in the disciplinary proceedings taken against Loranger. Had Loranger been convicted on either or both charges, the plaintiffs, or some of them, may have derived some personal satisfaction from that conviction. That satisfaction, however, would have been a purely personal matter; it would have no reality in law. Nor did the failure to reach that verdict have any consequence for the appellants sounding in damages.

[19] The appellants rely on Beckstead v. Ottawa (City) (1997), 1997 1583 (ON CA), 37 O.R. (3d) 62, 155 D.L.R. (4th) 382 (C.A.), Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 1990 6611 (ON SC), 74 O.R. (2d) 225, 72 D.L.R. (4th) 580 (Div. Ct.) and George v. Beaubien, [1998] O.J. No. 4022 (Gen. Div.). None of these cases supports the appellants' claim. In Beckstead, the careless investigation resulted directly in Beckstead being charged with fraud. The negligence had a direct, profound and damaging legal impact on the claimant. In Doe, the negligence contributed to the claimant being sexually assaulted. In George, the motion to strike the statement of claim was dismissed because it could not be said that the defendant's action did not contribute to the death of George; it was not clear on the pleadings that George's death was too remote.

[20] The reasoning in these three cases provides no support for the appellants' claim against Gatien and Nepean. I would therefore dismiss the appeal with costs.

Appeal dismissed.