COURT OF APPEAL FOR ONTARIO

CITATION: Kassian Estate v. Canada (Attorney General), 2015 ONCA 544

DATE: 20150722

DOCKET: C59819, C59820, C59849

Hoy A.C.J.O, Sharpe and Benotto JJ.A.

BETWEEN

The Estate of Edward Kassian, Deceased, By Its Administrator, Michael E. Kassian, The Estate of Eileen Kassian, Deceased, By Its Administrator, Michael E. Kassian, Michael E. Kassian, Kathleen E. Kassian and Evan M. Kassian By Their Litigation Guardian, Michael E. Kassian, Douglas E. Kassian, Alycia L. Kassian, Andrew D. Kassian and Sylvia K. Bayle

Plaintiffs/Respondents (Respondents)

and

The Attorney General of Canada, The Akwesasne Police Services Board, The Mohawk Council of Akwesasne, Her Majesty the Queen in Right of Ontario as Represented By The Minister of Community Safety and Correctional Services, The Estate of Dany Gionet By Its Litigation Administrator, Peter Hagen, Constable Michael Biron and Sergeant Kenneth Chaussi and The Attorney General of Quebec

Defendants/Appellants (Appellants)

Lise Favreau and Sunil Mathai, for Her Majesty the Queen in Right of Ontario

Mathieu Verner and Sylvie Labbé, for the Attorney General of Quebec

Sharon Johnston and Orlagh O’Kelly, for the Attorney General of Canada

William J. Sammon and Amanda Estabrooks, for the respondents

Heard: June 23 and 24, 2015

On appeal from the order of the Divisional Court (Justices J.M. Wilson and M.T. Linhares de Sousa, Justice J.A. Thorburn dissenting), dated June 2, 2014, with reasons reported at 2014 ONSC 844.

ENDORSEMENT

[1] On November 14, 2008, Edward and Eileen Kassian, both 77 years old, were driving through Cornwall Island where Mohawk land straddles the provinces of Ontario and Quebec and borders New York State. While stopped at a stop sign, they were struck by a driver who was being pursued at high speed by the Akwesasne Mohawk Police Service (the “AMPS”). They were killed instantly – as was the driver. Their estate and family members brought an action against the AMPS and others including the Attorneys General of Ontario, Quebec and Canada. The allegation against Ontario and Quebec was based on vicarious liability for the negligent actions of the officers involved in the high speed chase.

[2] Ontario and Quebec brought a motion for summary judgment seeking dismissal of the action against them. The respondents also brought a motion to amend their pleadings by: (1) adding a claim for direct negligence against Ontario, Quebec and Canada on the basis that they had failed to implement recommendations in an Audit Report prepared in 1991 in connection with the AMPS and (2) alleging that the police cruisers used by officers of the AMPS were beneficially owned by Ontario, Quebec and Canada.

[3] The motions judge dismissed the summary judgment motion of Ontario and Quebec and allowed the amendments to the claim in part. The decisions were upheld by the majority of the Divisional Court. Ontario, Quebec and Canada appealed with leave of this Court. For the reasons that follow, we allow the appeal.

Claims against Ontario and Quebec for vicarious liability – Summary Judgment Motions

[4] The respondents’ claim against Ontario and Quebec for vicarious liability is based upon a quadripartite agreement (“the Agreement”) between the Mohawk Council of Akwesasne, Ontario, Quebec and Canada. The Agreement provided for the funding of a policing service in Akwesasne. The preamble to the Agreement provides that “the Mohawks of Akwesasne shall have an autonomous and independent policing service and that such service shall be provided by the AMPS in keeping with the needs of the public safety aspirations of the Mohawks of Akwesasne”.

[5] Article 6 of the Agreement is entitled “Autonomy and Independence of AMPS” and provides that:

The Chief of Police and AMPO [Akwesasne Mohawk Police Officers] are employed by the Council. However, with respect of police operations and investigations, the Chief of Police and AMPO shall act independently and free from any type of interference and in that respect, they cannot receive any direct or indirect instructions from the Council, its employees or any other entirety created or established by Council.

[6] Article 15 of the Agreement mandates the establishment of a Liaison Committee to monitor the implementation of the Agreement, review issues of mutual concern, resolve through discussion any disputes that may arise, and make recommendations relating to the implementation of the Agreement. However, no Liaison Committee was ever set up.

[7] Article 21.2 of the Agreement provides that nothing in the agreement is to be construed as conferring on the personnel employed as a result of the agreement, the status of employee, officer, or agent of Ontario or Quebec or the status of a person acting in partnership or joint venture with Ontario or Quebec.

[8] The respondents allege that the terms of the Agreement created a partnership or enterprise between Ontario, Quebec and the Mohawk Council of Akwesasne to conduct policing on the First Nations territory. As such, their position is that Ontario and Quebec are vicariously liable for the actions of the officers who conducted the high speed chase.

[9] The decision of the motions judge, upheld by the Divisional Court, was that a trial was required to determine the nature of the relationship created by the Agreement. The admitted error of the motions judge in articulating the test for summary judgment was not directly in issue in this court.

[10] In our view, the majority of the Divisional Court erred in the application of the law of vicarious liability to the facts of this case. On a correct application of the law of vicarious liability, there is no genuine issue for trial in this case.

[11] The law of vicarious liability was articulated by the Supreme Court of Canada in K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403. At para. 18, the court explained that “liability is imposed on the theory that the person may properly be held responsible where the risks inherent in his or her enterprise materialize and cause harm, provided that the liability is both fair and useful.” The court held, at para. 19, that to succeed in a claim for vicarious liability, a plaintiff must establish that:

1. The relationship between the tortfeasor and the person against whom liability is sought is sufficiently close to make a claim for vicarious liability appropriate; and

2. The tort is sufficiently connected to the tortfeasor’s assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise.

[12] An important factual consideration includes the degree of control exercised by the person or organization sought to be held liable and the tortfeasor: K.L.B., at para. 22. In K.L.B., the court considered whether the relationship between the province of British Columbia and foster parents was sufficiently close to impose vicarious liability on the province for the negligent actions of the foster parents. The court found that the day-to-day control of the affairs of foster children made the foster parents sufficiently independent from the province so there was no basis for vicarious liability. This conclusion was arrived at even though governments provided instruction, training, periodic monitoring and funding.

[13] By contrast, where the control is at the day-to-day level, as it was in Blackwater v. Plint, 2005 SCC 58, [2005] S.C.R. 3, vicarious liability will be imposed. There, the United Church of Canada was found vicariously liable for its employees who abused children in a residential school. The Church was involved in all aspects of the operation and management and religious education of the students.

[14] We agree with the approach taken by the dissenting judge to determine the nature of the relationship between the AMPS and the governments. She examined the terms of the Agreement and concluded that it did not create a relationship that is sufficiently proximate between Ontario, Quebec and the police officers to justify the imposition of vicarious liability. Ontario and Quebec were too remote from the tortfeasors to be acting on their behalf. The tort cannot reasonably be regarded as a materialization of risks inherent in the “enterprises” of Ontario and Quebec. The terms of the Agreement make this clear. In particular, the Agreement provides that:

• the AMPS is “autonomous and independent”;
• the provinces are not in a partnership with the AMPS;
• the Akwesasne Mohawk Police Officers and their Chief are employed by the Council;
• the AMPS Chief is responsible for the operation and administration of the police service;
• the Chief of police shall be free of any interference;
• the governments are not required to provide training to the AMPO; and
• the Liaison Committee has only consulting and recommendation duties, but no power or control over the AMPS.

[15] Since the terms of the Agreement do not create a relationship that is sufficiently close or controlling to justify the imposition of vicarious liability, there is no genuine issue requiring a trial. We therefore allow the appeal on this ground.

Amendment of Pleading

[16] Many years before the Agreement was signed, an audit was conducted with respect to the police procedures and practices of the AMPS. The resulting report of 1991 identified a number of problems with management procedures and officer training. The report’s recommendations included that the police be placed under tutelage “to develop and implement appropriate management policies and procedures”.

[17] The respondents sought to amend their claim to allege that the audit called for corrective intervention to ensure police standards were met, and that the failure on the part of the governments to do so constituted direct negligence, which caused or contributed to the deaths of the Kassians. The proposed claim was framed as follows:

The Plaintiffs state that the institutional Defendants through their services and agents were negligent by failing to implement the regular audits that were recommended in the 1991 audit report, which negligence caused or contribute to the deaths of Edward and Eileen Kassian as the deficiencies that were noted in the 1991 audit were evident and reflected in the conduct of the Akwesasnse police officers on the 14th of November 2008.

[18] The motions judge and the majority of the Divisional Court held that a trial was necessary to resolve this issue. (This was the test used by the motions judge. The Divisional Court noted that she had conflated the test for summary judgment with that for striking a pleading, but held that she nonetheless was correct to conclude that a trial was necessary.)

[19] We agree with the analysis of the dissenting judge. After considering the applicable jurisprudence (Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537), she concluded that the governments were too far removed from the day-to-day conduct of the officers of the AMPS to owe a private law duty of care to particular individuals. The harm to the respondents was not reasonably foreseeable and the relationship between the governments and the AMPS was not sufficiently close to impose a duty of care.

[20] The audit was conducted in 1991, years before the Agreement was signed. Although the audit identified problems with the AMPS, no mention was made of high speed chase protocols. The governments were not required to conduct audits, train, hire or supervise the officers. The audit did not impose a duty on third parties. In particular, there was no duty imposed to persons driving through the land seventeen years later.

[21] Although the defendant governments are under a general duty to ensure adequate and effective police services in Akwesasne, and have some broad general powers in furtherance thereof, we agree with the dissenting judge that these broad powers and duties to the public at large do not give rise to private law duties of care to particular individuals.

[22] We also agree with the dissenting judge that claims alleging negligence against public authorities should be examined at the pleading stage to determine whether there is any possibility a duty of care can be found to exist. Since no duty of care is owed in the present case, the claim cannot succeed.

[23] Likewise, as it is apparent from the Agreement that there is no factual basis for the allegation that the police cruisers are beneficially owned by Ontario, Quebec and Canada, this bald allegation should not have been allowed.

[24] The appeals of Ontario and Quebec are allowed and the action against them is dismissed.

[25] Canada’s appeal from the Divisional court’s dismissal of its appeal from the motion to amend is also allowed. Canada’s request to deny the impugned amendments to paragraphs 23, 24 and 33.1 to 33.8 of the Statement of Claim is granted.

[26] In accordance with the parties’ resolution of costs, the appellants are entitled to costs of the appeal fixed at $25,000 and to costs of the Divisional Court appeal fixed at $20,000. All costs are inclusive of disbursements and HST.

“Alexandra Hoy A.C.J.O.”

“Robert J. Sharpe J.A.”

“M.L. Benotto J.A.”