Court of Appeal for Ontario

Citation: 2014 ONCA 860 Date: 2014-12-02 Docket: C58598

Before: Blair, Rouleau and Pepall JJ.A.

Between

Lynda Cochrane Plaintiff (Appellant)

and

City of Kawartha Lakes Police Services Board, John Hagarthy, Will Herbert, Paul Richards and Carrie Jenkins Defendants (Respondents)

Counsel: Shawn McNamara, for the appellant Kevin McGivney and Natalie Kolos, for the respondents

Heard: November 28, 2014

On appeal from the judgment of Associate Chief Justice Frank N. Marrocco of the Superior Court of Justice, dated March 3, 2014.

APPEAL BOOK ENDORSEMENT

[1] While we fully appreciate the anxiety of the appellant in the circumstances, we see no basis for interfering with the decision of the motion judge to grant summary judgment dismissing the action.

[2] It is not necessary to address whether the police owed a private duty of care to the appellant because, even if that were the case, there is no basis for a negligence claim on the evidence. The principle allegation is that the police conducted a negligent investigation resulting in the failure to send the needle to be tested for communicable diseases. However, the police made inquiries about testing the needle, as requested by the appellant, both at the time in 2009 and again in 2012. The universal reply from all sources was that such testing was not possible or was unreliable. There was no conflicting evidence on this. Given the evidence that testing the needle was not possible or would lead to misleading results, the police failure to test could not form the basis for negligence because no damages flowed from it.

[3] The appeal is therefore dismissed.

[4] Costs to the respondent fixed in the amount of $5,000 all inclusive in accordance with the agreement of counsel.