Price v. Kelday, 2019 ONSC 7231

CITATION: Price v. Kelday, 2019 ONSC 7231

COURT FILE NO.: DC 52/18

DATE: 20191218

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Morawetz C.J.O.S.C.J. and D.L. Corbett and Gray JJ.

B E T W E E N:

LEO SCOTT PRICE

S. Michael Robertson, for the Respondent

Plaintiff/Respondent

and -

DAVID I. KELDAY, LEE CURRAH, JOHN

James D. Virtue and Dagmara Wozniak,

DANCE, TRACEY FISCHER, STEPHEN A.

for the Appellants

STOKAN, DEREK BATTIN, LONDON

POLICE SERVICES BOARD and VICKI

LYNN DEPONT

Defendants/Appellants

Heard at Toronto: June 26, 2019

REASONS FOR DECISION

D.L. Corbett J.:

[1] The plaintiff/respondent, Leo Scott Price, sued the London Police Services Board and several police officers for negligent investigation of complaints made about Price by his estranged wife.

[2] The trial judge dismissed the case against several police officers. However, he found two officers (Kelday and Stokan) and their employer (London Police Services Board) liable for negligent investigation. He awarded damages of $40,192. The unsuccessful defendants appeal to this court.

Summary and Disposition

[3] The trial judge followed the trial decision in Tremblay v. Ottawa Police Services Board[^1] to frame his analysis of the case. The Court of Appeal subsequently reversed Tremblay[^2] and made it clear that the analysis used at trial in Tremblay is not the correct test for allegations of negligent investigation by police.

[4] In light of the Court of Appeal decision in Tremblay, the decision below cannot stand. There is no need to send the case back for a new trial: it is clear that Price cannot make out claims of negligent police investigation in light of the proper test. Therefore, I would allow the appeal and dismiss the action.

Jurisdiction and Standard of Review

[5] An appeal lies to this court from the final order of a judge for not more than $50,000 exclusive of costs.[^3] Therefore this appeal is properly before this court.

[6] The standard of review identified by the Court of Appeal in Tremblay applies to this case.[^4] Questions of law are reviewable on a correctness standard. The trial judge’s findings of fact are entitled to deference, but “the trial judge's ultimate ruling whether those facts are insufficient, at law, to constitute reasonable and probable grounds is reviewable on a correctness standard….”[^5]

[7] In respect to questions of fact, the trial judge’s findings are reviewable on a standard of “palpable and overriding error”.

An appellate court is also justified in intervening where the trial judge draws an inference or makes a finding of fact that is “demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge….[^6]

Facts of this Case

[8] Price, was married to Vicki Lynn Depont. Price and Depont lived together in a house they owned jointly ay 89 Hunt Club Drive, London (the “home”).

[9] Price and Depont separated. Price moved out of the home; Depont continued to live there. Price and Depont were unable to resolve issues related to their separation and family law proceedings were commenced.

[10] Although Price had moved out, he continued to come to the home from time to time, asserting his possessory right to be there. As described by Depont, Price was not violent and did not threaten violence to Depont, but she did feel harassed by Price’s conduct.

[11] In May, 2011, Depont came home from work one day and discovered that the metal garage door had been bent back and someone had broken into the garage and gained access to the house. Various items had been moved within the house, and personal papers belonging to Depont had been taken.

[12] Depont reported this incident to police. She told police that she suspected that her estranged husband was to blame.

[13] Police interviewed a neighbour who lived across the street from the home. The neighbour told police that he saw Price at the home shortly after 6 a.m. on the day of the break-in. The garage door was open and Price was in the garage. The neighbour and Price exchanged a few neighbourly words before the neighbour left for work.

[14] On the basis of this information, police had a reasonable basis to believe that Price was the person who had damaged the garage door, forced his way into the garage, entered the house, and taken Depont’s papers. Police then spoke to Price at his mother’s house, where he was staying. Price showed police a file folder of Depont’s personal papers. Police subsequently confirmed with Depont that these were the papers that had been taken from the home.

[15] Price was arrested on May 21, 2011 on suspicion of break, enter and theft involving an alleged forced entry into the home. Price’s position was that, as a co-owner of the home, he had the right to be there: it is not a crime to break into your own house.

[16] After consultation with the Crown, police laid a charge of theft, but not break and enter.

[17] Police would not release Price on a promise to appear unless he agreed not to go to the home as a condition of his release. Price refused this condition on the basis of his possessory right, and so he was held in custody pending a bail hearing.

[18] At the bail hearing, Price was released from custody on condition that he not attend at the home unless permitted to do so pursuant to an order in the family law proceedings, a condition to which he agreed to obtain his release.

[19] On February 10, 2012, an order was made in the family law proceedings permitting Price to attend at the home once per month, in the company of his real estate agent, on notice to Depont.

[20] On April 22, 2012, Price was arrested and charged with breaching his release conditions by attending the home without prior notice to Depont.

[21] The charges against Price were ultimately withdrawn.

Legal Principles

1. Test for Negligent Investigation by Police

[22] The test for negligent investigation by police in the context of laying criminal charges includes the following principles:

(a) The appropriate standard of care is that of the reasonable police officer in similar circumstances.

(b) In laying charges, the reasonable standard is informed by the presence of reasonable and probable grounds to believe the suspect has committed the offence.

(d) Police are not required to evaluate evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges.

(e) A police officer is not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.[^7]

[23] Following these principles, police conduct is assessed on the basis of information police have in their possession, not “additional information the officer ‘could have had upon simple inquiry’”.[^8] As stated by Doherty J.A. in Golub:

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.[^9]

[24] Thus the question is not whether police could have or should have taken further steps, but whether police acted reasonably on the basis of the information that they had:

… the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.[^10]

[25] In conclusion on this point, in Tremblay, the Court of Appeal held:

[as stated in Barclay:] “the trial judge's criticism of the police for failing to follow-up on, or take steps to become aware of, possible innocent explanations ignores the established jurisprudence that police are not required to exhaust all avenues of investigation, establish that an accused has no defence, or even obtain an accused's version of events.”[^11]

By proceeding contrary to this well-established principle, the trial judge erred in finding that Sgt. Aylen was required to take additional investigative steps in light of the red flags she identified.[^12]

Price’s Complaint

[26] Price’s position is that he was right all along: as a co-owner of the home he had a right to be there. Under family law principles, Price and Depont both had possessory rights to the matrimonial home, and Price was within his rights to go to the home any time he wanted, and, indeed, to resume living there. Price takes the position that police were negligent in arresting him for break and enter, given these points: he had a colour of right to be at the home, which is a complete defence to the charge of break and enter. Price takes the position that everything that happened to him, other than the simple “theft under” charge, flowed from police negligence in pursuing a charge for which they had no reasonable and probable grounds. Price argues that there was a “rush to judgment” against him, and that police failed to follow the London Police Service Domestic Violence Policy.

[27] In my view Price’s claim founders on multiple points. I agree that, prior to his arrest, Price was entitled to be at the home, and, indeed, to live there. He was not, however, entitled to harass Depont. Price apparently used his right to attend at the house to engage in harassment. The “break-in” was an escalation of this behavior: damaging the garage door, making it look like someone without access had forced his way into the home to unsettle Depont, and taking Depont’s personal papers, all arose in the context of conflict following marital separation. Police understood this context and responded to events within this context.

[28] Police are put in a difficult situation by these sorts of conflicts, which can and do sometimes escalate. They must be treated seriously. Police do not have to exercise perfect judgment. Here, in my view, not only were police not negligent, but they acted appropriately, well within a range of reasonable options, and Price has nobody but himself to blame for what happened. In particular:

a. When police spoke with Price, he admitted to having been at the home and to having taken Depont’s personal papers. He was less than candid with police, telling them he was still living at the home when he had not done so for fourteen months. He was not contrite, not in the slightest. He asserted that he had a right to go to the home, and that he planned to do so again that very night to play cards with friends. On the basis of this statement, police could reasonably conclude that Price had little insight that he had crossed a line by damaging the garage door, making it appear that there had been a break-in, and taking Depont’s personal papers. And police could reasonably conclude that a situation of domestic conflict had escalated and could escalate further.

b. Price takes the position that if the only charge had been theft under $5,000, under standard police practice he would have been released unconditionally on a promise to appear. He asserts that the police demand that he promise not to attend at the home was unreasonable and flowed from police “over-charging” him with break and enter. I do not agree. Police did not charge Price with break and enter. Police were entitled to require a promise not to attend at the home for the charge of “theft under” on its own, given the circumstances of the case. Price could have agreed to the term and then contested it on a bail variation application, or sought the exemption that was granted subsequently that the promise be subject to variation in the family law proceedings. He did none of these things, and his insistence that he would not promise not to go to the home was the reason he was kept in custody pending the bail hearing.

c. At the bail hearing Price agreed not to go to the home in order to obtain interim release from custody. This order for interim release was a judicial act, on the basis of positions taken by the Crown and Price, and was not a police act. Price was in a position to explain his colour of right defence to the presiding justice, who could take that defence into account in weighing the strength of the Crown case and deciding the terms on which Price would be released. Even if the police position on release terms had been unreasonable at the time of arrest (which it was not), the chain of causation was broken by the bail hearing.

d. Price’s second arrest was for alleged breach of the terms of his recognizance, as those terms were qualified by the order of the family law court. The arrest was justified on the basis of Officer Stokan’s investigation: Price was required to give Depont notice that he was attending at the property. Depont said that she did not receive notice. Price had no corroboration of his claim to the contrary. This was a sufficient basis for Officer Stokan to make the second arrest and lay the charge of breach of recognizance.

e. In several places the trial judge criticized officers for failing to confirm facts established by other officers earlier in the investigation. This criticism is misplaced. Officers are entitled to rely upon all information known to police, and are not required to verify personally the work performed by other officers.[^13]

f. The Domestic Violence Policy does not preclude police from responding reasonably to emergent situations of potentially escalating conflict. That is what police did in this case.

g. Police had reasonable and probable grounds to arrest in both instances. The fact that the first arrest was also made for break and enter, and that this charge was not laid (after consultation with the Crown), does not change the analysis.

[29] As noted at the outset, the trial judge’s decision was founded on the trial decision in Tremblay, and for that reason alone cannot stand. As is evident from my summary of the case, even on the analysis used by the trial judge, there was no basis for finding negligence by the defendants. Police acted reasonably and appropriately in this case.

Costs

[30] That leaves the question of costs. The parties agree that costs of the appeal be fixed at $12,000 inclusive. But what of the costs of the trial? Mr Robertson argues that the plaintiff, a truck driver of ordinary means, should not be visited with trial costs (fixed at $48,000 by the trial judge), given that this is a developing area of the law and he could not have known that the Court of Appeal would decide Tremblay as it did.

[31] Persuasive as Mr Robertson was, I am not persuaded. Police do their work in real time and must be accorded reasonable latitude to exercise their judgment, not just to prosecute crimes when they take place, but to keep the peace. Further and in any event, Price commenced this litigation before the trial judgment in Tremblay and not in reliance on its reasoning.

[32] I appreciate that Price was upset that police forced him to stay away from his home. But Price crossed a line when he broke into the home and stole his wife’s papers. The justice system worked as it was supposed to work in his case: Price was given a swift opportunity to contest his release conditions, at which time he had a full opportunity to explain why he felt he should not be precluded from going to the home as a term of his release. He had a further opportunity to make his case on this point when he sought an order from the family law court to obtain access to the house – and the family law court accorded him only limited access.

[33] I appreciate that Price is not a rich man and he brought his lawsuit in the belief that police ought not to have interfered in what he saw as a private matter between himself and his estranged wife. However, costs awards are the risk of bringing litigation. In my view police did nothing wrong here, and I see no reason why the publicly funded police force ought to absorb its entire cost of Mr Price’s decision to bring losing litigation. That said, I would fix total costs of the trial and the appeal at $48,000, inclusive, bearing in mind the proportionality principle in Boucher v. Public Accountants Council.[^14]

[34] Finally, to be clear, this is not a punitive costs order. Costs are an indemnity, and public litigants, like police defendants in this case, are entitled to receive their costs when they succeed in litigation of this kind. The trial took 10 days. The costs awarded are reasonable partial indemnity costs and are not punitive.

Disposition

[35] The appeal is allowed, the judgment is set aside, the claim is dismissed, with costs of $48,000 inclusive for the trial and appeal, payable by Price to the respondents.

___________________________ D.L. Corbett J.

I agree: ___________________________ Morawetz C.J.O.S.C.J.

I agree: ___________________________ Gray J.

Date of Release: December 18, 2019

CITATION: Price v. Kelday, 2019 ONSC 7231

COURT FILE NO.: DC 52/18

DATE: 20191218

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Morawetz C.J.O.S.C.J. and D.L. Corbett and Gray JJ.

BETWEEN:

Leo Scott Price

Plaintiff/Respondent

– and –

David I. Kelday, Lee Currah, John Dance, Tracey Fischer, Stephen A. Stokan, Derek Battin, London Police Services Board and Vicki Lynn Depont

Defendants/Respondents

REASONS FOR DECISION

D.L. Corbett J.

Date of Release: December 18, 2019

Price v. Kelday, 2019 ONSC 7231

Case Summary

Price v. Kelday, 2019 ONSC 7231

REASONS FOR DECISION

Summary and Disposition

Jurisdiction and Standard of Review

Facts of this Case

Legal Principles

1. Test for Negligent Investigation by Police

Price’s Complaint

Costs

Disposition

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 2