COURT FILE NO.: 06-CV-36754

DATE: 2012/02/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LISA OLSZEWSKI

Plaintiff

– and –

JOHN DOE OFFICER 1, JOHN DOE OFFICER 2, and THE OTTAWA POLICE SERVICES BOARD

Defendants

Kellie Stewart, for the Plaintiff

Geoffrey Cantello, for the Defendants

HEARD: January 23, 24, 25, 26 and 27, 2012

REASONS FOR DECISION

Power J.

Introduction

[1] This case is about the inherent conflict between the obligations facing police officers in the execution of a “Warrant For Arrest With Optional Authorization To Enter A Dwelling House” in what was perceived to be a high-risk situation, on the one hand, and the right of a temporarily absent occupier of a dwelling house to expect that her property, including two pit bulls, will not, insofar as is reasonably possible, be damaged, on the other hand.

[2] The plaintiff seeks an award of general damages in the amount of from $100,000 to $150,000; punitive damages of from $75,000 to $100,000; and special damages of $16,000 against the Ottawa Police Services Board for trespass, intentional infliction of mental suffering, and malfeasance in public office. Her complaint is that on September 14, 2006, several police officers entered her residence in search of a third party at which time they, the police officers, “proceeded to recklessly and without cause, teased, tortured and killed the plaintiff’s two dogs which were inside of the home, and to cause damage to and/or destroy much of her property and possessions inside of her home.” She also complains that she suffered, and continues to suffer, personal injuries as a result of the police officers’ conduct.

[3] At the opening of trial I queried counsel concerning the manner in which the title of proceedings in this action was structured. I explained that my understanding was that use of the name John Doe is usually made in two situations; firstly, it is used where there is a need to substitute a pseudonym for a real name in order to protect the identity of a real person, and secondly, where the plaintiff, at the time the proceeding was commenced, does not know the name of a “would be” or “intended” party. Ms. Stewart, as I anticipated, explained that the second situation applies in this matter.

[4] I then drew counsel’s attention to paragraph 3 of the statement of defence which reads as follows:

3. Pursuant to subsection 50(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended, the Ottawa Police Services Board is liable for the torts of police officers in its employment acting during the course of their duties. Accordingly, all of the individual named Defendants are improperly named Defendants. The only proper Defendant in this matter is the Ottawa Police Services Board.

[5] I observed that I did not interpret s. 50 in this fashion and observed that, in my opinion, it was a section that imposed vicarious liability on the Police Services Board for the wrongful acts of its police officers. This section, I observed, came about as a result of a history of some confusion in the courts as to just who employed police officers.

[6] Accordingly, I advised counsel that I did not understand the aforesaid defence and that, as well, I was reluctant to proceed with the trial in which the claim was against, among others, two John Does, in circumstances where the plaintiff was still not aware of the identities of the two John Does.

[7] Counsel advised that, nevertheless, they wished to proceed with the trial notwithstanding these procedural concerns. My understanding of their position was that the issue to be tried was whether police officers under the jurisdiction of the Ottawa Police Services Board perpetrated the alleged wrongdoing and that, if I subsequently made such a finding, a judgment would be rendered against the Ottawa Police Services Board. Several officers testified at trial. I am not still sure which of them are the John Does. In any event, the bottom line is that I agreed to proceed as if the Board was the only defendant.

The Facts and Comments Thereon

[8] The plaintiff, Lisa Olszewski, was and is employed as an exotic dancer. She is in her early 30’s and is a single mother of one child. After the events in question in this action she attended college and earned a certificate(s) in “Addictions and Social Work.” However, dancing is her preferred occupation.

[9] At all relevant times Ms. Olszewski was a tenant of a townhouse at 3897D Richmond Road which is in the Bells Corner area of Ottawa. This townhouse consisted of a main floor level, a second floor level where the bedrooms were situated, and a partially finished basement.

[10] Prior to the summer of 2005 the plaintiff had an on-and-off relationship with one Trevor Provost. This lasted for approximately five years. During Christmas time 2005 there was an attempt by Ms. Olszewski and Mr. Provost at reconciliation. However, this ended in charges against Mr. Provost of assault and uttering a threat to cause death to the plaintiff. Ms. Olszewski testified in chief that, following the assault and threats, she had no, or extremely limited, contact with Mr. Provost. It is her position that Mr. Provost was not in her townhouse on either September 13^th or 14^th, 2006.

[11] Ms. Olszewski testified that Mr. Provost did not have much involvement with her two dogs, pit bulls. The pit bulls were named Cash and Oz. Both dogs were males and both were American pit bull terriers. Cash was a California red nose. Oz was brindle in colour. Oz, apparently, was not a purebred pit bull although Cash was. The plaintiff, in her testimony, described the dogs. Surprisingly, she was not accurate with respect to their ages or their weights.

[12] Ms. Olszewski considered the dogs to be “beautiful.” She said they were very friendly dogs. She said that Cash loved to be petted and loved to carry objects in his mouth. She described him as happy and as a dog people were surprised to learn was actually a pit bull. She described Oz as a Mama’s boy [meaning her] that loved to touch her in the sense that he always wanted to be close to her. She said that both dogs slept in the same bed as did she – Oz under and Cash on top of the blankets. She said that she personally looked after most of their training but said that they did have some professional training. She said that she trained them to be obedient pets and said that they were “good dogs.”

[13] Shortly before 11 p.m. on September 13, 2006, police officers Coulthart and Lehman were directed to attend at a residence where, it was suspected, they would locate Mr. Provost. The evidence at trial was that Mr. Provost was well-known to the Ottawa police and had a reputation for being violent and being difficult to arrest. Their instructions were to effect his arrest pursuant to a warrant for his arrest issued in February of 2006 pursuant to the aforesaid charges. The information they received that he was at that residence proved to be faulty. They then decided that they would look for him at 3897D Richmond Road, which their records showed, was his last recorded address.

[14] Ms. Olszewski’s townhouse unit is situated near the middle of a row of townhouses. The officers arrived there just before midnight. They observed that there were lights on in the house and a large television in the on position in a room at the rear of the townhouse. They went around to the rear of the residence where they observed that the rear glass patio door was open but with its screen door in the closed position. They heard a male voice say “get the fuck out”. This was immediately followed by two pit bulls exiting through the patio door and running into the fenced-in rear yard. The officers withdrew somewhat in order to “get out of the way.” Neither officer actually saw a male person inside the house or at the door. At trial it was suggested by plaintiff’s counsel that perhaps what they heard was someone speaking on the television. They denied that suggestion. I find that, indeed, there was a male person in the townhouse at that time.

[15] Constable Coulthart described the dogs as being large – about knee high. Constable Lehman described them as being higher than his knees – “up to my thighs – stalkily built with a broad face.” For the record, the officers are not significantly different in their respective heights.

[16] Following that incident the two officers returned to the front of the residence at which time a third officer arrived – Constable Brownrigg. He, Constable Brownrigg, went to the rear of the unit while officers Coulthart and Lehman attended at the front door of the townhouse at which time they knocked on the door. Constable Coulthart testified that while they were at the front door, they were radioed or called by Constable Brownrigg and informed that the dogs had returned to the house and that the patio doors had been closed and a curtain drawn. Constable Lehman had no recollection of this call from Constable Brownrigg. Constable Brownrigg could not recall it either. In any event, there was no human response to the knock on the front door.

[17] I pause here to observe that there were many factual discrepancies during trial in the testimony of the police officers some of which were passed on to the Justice of the Peace who, on September 14, 2006, authorized entry into the townhouse. I am not surprised that there were inconsistencies in the testimony. Given the large number of officers who testified, I would have been surprised if there were not inconsistencies. In my view, with a couple of exceptions, these inconsistencies were minor in nature.

[18] Constables Coulthart and Lehman, when at the front door, heard dogs barking in the house. They concluded that there was a male person in the house who they believed to be Mr. Provost. In my opinion, this was a reasonable assumption. The grounds for a similar assumption by these and other officers as matters progressed became more compelling as time passed.

[19] Constable Coulthart then went to his vehicle to begin making his report when, shortly thereafter, he observed two female persons approaching the house. These persons turned out to be the plaintiff and her friend, Melissa Caverley.

[20] Constable Coulthart asked the plaintiff whether Mr. Provost was in the residence. She denied his presence. There are several discrepancies in the evidence between the plaintiff and police officers as to just what was said during this and subsequent conversations between the plaintiff and various police officers. There are also some minor conflicts between the testimony of Ms. Caverley and the officers.

[21] Each of the officers made contemporaneous written notes and typewritten reports of what transpired on September 13 and 14, 2006. They, therefore, were able to refresh their memories before and during their testimony. In making my credibility findings I have taken into consideration this fact. I find that all of the police officers, notwithstanding the aforesaid inconsistencies, gave their testimony in a credible fashion.

[22] As noted above the plaintiff, when first questioned by the police, denied that Mr. Provost had recently been in or was then in her residence. According to her testimony, she continued to deny this up to the time she departed the townhouse area early the following morning. She explained to the officers that she had not seen him for at least a month. Constable Coulthart testified that he told her that someone had let the dogs out of the house into the back yard to which she responded that that person must have been one of her neighbours. No neighbour was called to give testimony at trial and no names were suggested by the plaintiff.

[23] According to Constable Coulthart, the plaintiff began to cry and then admitted that Mr. Provost had been staying there off and on since November, 2005. He testified that she told him that she feared for her safety because Mr. Provost would now know that the police were present and would blame that on her. Ms. Olszewski, in her testimony, insisted that she told the officers that she and Mr. Provost had an on-and-off relationship for a few years but that it had not continued after the alleged assault of December 26, 2005. Indeed, she testified that their relationship had ended during the summer of 2005. I prefer the evidence of Constable Coulthart as being more credible. His version of these events is corroborated by Constable Brownrigg.

[24] According to the plaintiff, following the 2005 assault, Mr. Provost had called her with threats and had begged her to have the charges dropped. In her in-chief testimony, she said that her last contact with Mr. Provost was shortly after the assault.

[25] While giving her testimony, Ms. Olszewski was not able to identify the particular officers to whom she spoke or who spoke to her on September 13 and 14, although she did, of course, indicate that two of the many officers with whom she spoke were women.

[26] During her testimony she insisted that notwithstanding that she maintained her position throughout that Mr. Provost was not in her residence the police officers tried to convince her that he was.

[27] She testified that she told the officers that there were two pit bulls in the residence and that she had trained them. She testified that she had contemplated employing a dog training school [TNT Concepts] but that, in the end, she did not employ it. She said that she told them that the dogs were good dogs [meaning well behaved] and that they would not hurt the officers although, if the officers were to enter the house, the dogs might jump up at them and she said that she told them that the dogs had a tendency to get under people’s feet. She testified that she gave the officers some tips on how to calm the dogs should they enter the premises. On this issue, I accept the plaintiff’s testimony as credible in the sense that she said these things but unrealistic given the well recognized personality propensities of pit bulls to violence.

[28] She insisted, as well, that she told them that she was fearful for the dogs’ safety – she was concerned about them being hurt if the police entered the premises. She also insisted that she begged the officers to allow her to enter the residence in order to retrieve the dogs or to allow her, at least, to attempt to induce them to leave the premises. She said that they refused her request. Constable Coulthart agrees that he refused her request because he believed that Mr. Provost was in the house and he knew that Mr. Provost was considered to be a dangerous person and that, therefore there was a risk that Ms. Olszewski could be injured or taken hostage. In my opinion Constable Coulthart, in the circumstances, acted appropriately in his refusal to allow her to enter her townhouse or to approach it with the intent of inducing the dogs to vacate the townhouse. He testified that he knew Mr. Provost from earlier dealings with him and knew him as a person who was on the “high risk to escape list.”

[29] Constable Brownrigg testified that after his arrival the plaintiff was advised that she could be “charged.” He said that, as a result of these remarks, her mood changed and that she then explained that Mr. Provost had been in her residence from time to time since the December assault on her and that he had likely been in the residence that day.

[30] Melissa Caverley, the plaintiff’s friend, testified that, indeed, Ms. Olszewski attempted to persuade the police to let her enter the house to retrieve her dogs or to call them out. She testified that the police told her that either method would be too risky. She also confirmed the plaintiff’s evidence that the plaintiff told the officers that, if they entered, they should make sure that the dogs were okay. Melissa Caverley was a credible witness.

[31] Constable Coulthart could not recall speaking to the plaintiff about the safety of the dogs.

[32] The plaintiff testified that she was told that she would have to leave the immediate area. Indeed, she testified that they threatened to charge her with harbouring a fugitive; aiding and abetting a fugitive; and/or interfering with the police. The police officers, when giving their testimony, did not dispute the fact that they suggested that charges could be laid against her. I find that, in the circumstance, the decision to have her leave the area was appropriate.

[33] In any event, Ms. Olszewski testified that, as a result of these threats, she left the area with Melissa but that, before doing so, she telephoned Mr. Provost on her cell phone to seek his assistance. She had earlier been asked to assist the police by attempting to call him. She had refused. She said that, when she finally called him, she asked him to cooperate but said that he told her to “fuck off” and hung up. I noted in my desk book that she also said “I told the cops I called him – but he not coming.” This telephone call was made by her when she was near the vehicle in which she and Melissa had arrived and, while some officers were in the immediate area, they were not able to observe what number she had called. She testified that she did not call Mr. Provost at the number of the land line in her residence. Constable Coulthart testified that it was his understanding that she called Mr. Provost on the residence land line. Indeed, it was his testimony that she told him that that was correct and, as well, she told him that she told Mr. Provost to come out. During her testimony on this issue regarding what number she called, she did not offer up the number she said she did call. Constable Brownrigg was present at that time and observed her speaking on the phone. His evidence was that she confirmed to him that she had contacted Mr. Provost at her residence land line number. He said that, as a result, he was led to believe that, indeed, Mr. Provost was in the residence. I accept the testimony of the police officers over that of the plaintiff on this issue.

[34] I am satisfied that the police officers, as a result of this incident, clearly concluded that the call was made to Mr. Provost at the townhouse land line. I find that they had an honest belief that, therefore, Mr. Provost was in the house.

[35] Constable Brownrigg testified that at that time the plaintiff again began to cry whereupon he asked her what was the matter. According to his testimony, she told him that she was fearful that the police would hurt her dogs. He said that he responded as follows:

We are not here to hurt your dogs but to arrest Trevor – why would we hurt your dogs.

[36] He then added the following in his testimony:

She said the dogs have potential to attack the officers – they were trained like police dogs and that TNT Concepts were involved in this training.

I accept Constable Brownrigg’s testimony as credible. No witness from TNT Concepts was called to testify.

[37] He testified that he later passed on this information to one of his senior officers. In cross-examination he said that in his written report he put quote marks around the words “TNT Concepts” and “trained like police dogs.” He also testified that while he was at the scene on that evening he could see the dogs through the windows and that they barked insistently.

[38] In his written report made forthwith after the events, Constable Brownrigg wrote:

Information received from Constable Lehman and Constable Coulthart was that they had observed male letting dogs in the residence from the rear yard … (underlining mine)

[39] Since both Constables Lehman and Coulthart had testified that they did not actually see a male person, he was asked to explain this note. He responded that “observed” means “heard” – that “hearing is an observation.” His note, most certainly, led to some subsequent confusion among the police whether Mr. Provost had actually been seen in the residence. The various police reports had been circulated prior to the Tactical Team entry into the residence later in the day on September 14. I cannot conclude that Constable Brownrigg was disingenuous in his answer to this question. However, the fact is and remains, and I so find, that there was a male person in the residence that night and that, after the arrival of the police, at least two officers heard a man talking.

[40] When confronted in his cross-examination about Ms. Olszewski’s testimony concerning assurances concerning the safety of the dogs, he said “I might have said that – I can see myself saying this.” I do find, however, that at no time did the plaintiff receive a guarantee that her pit bulls would not be harmed.

[41] At approximately 1:00 a.m. on September 14, 2006, Constable Coulthart contacted Sergeant Holly Watson who was in charge of the patrol officers Coulthart, Lehman and Brownrigg. When Sergeant Watson arrived she was briefed by the officers. Sergeant Watson was, in my opinion, a very professional and credible witness. In her typed report she recorded the following:

Constable Coulthart indicated that Lisa Olszweski had arrived home with a friend of hers and was approaching the door, when she was intercepted by our officers, and her identity verified. She was initially reluctant to cooperate, but then agreed to call Provost on her phone number and ask him to come out. She tried a couple of times, and he wouldn’t answer. She was finally able to get through to her land line, and knew that Provost had answered. She confirmed that he was indeed in D3897 Richmond Road. He hung up on her however.

[42] Later in her written report she wrote:

Arrangements were made for Lisa to stay with a friend tonight. She would like to be advised when Provost has been arrested. She is fearful that Provost may feel that she turned him in, and will retaliate. She is also concerned that he may tell his friends where to find her.

[43] I interpret Sergeant Watson’s notes to mean that she was satisfied from the information that she received that Mr. Provost was in the residence. She further testified that, as a result of what she heard, she became concerned for the plaintiff’s welfare and attempted to make sure that she was protected. She could not recall talking with the plaintiff about the dogs but did recall being briefed about them by Constable Coulthart. Shortly after saying that, she said that it was possible that the plaintiff mentioned the dogs directly to her. When she returned to her office that morning she contacted one or more of the officers who were involved in the investigation and prosecution of the December 2005 assault charges to make sure that they were privy to the ongoing developments.

[44] I repeat that I cannot resolve all the discrepancies in the evidence with certainty. However, I do find that, whatever was said, the police officers honestly assumed that the call had been placed to Mr. Provost inside the townhouse. I also find that the officers, or some of them, believed that the dogs had been trained as attack dogs. I make no finding regarding whether they were, in fact, so trained. However, that is what the officers believed.

[45] As mentioned earlier, Constable Coulthart testified that he had dealings with Mr. Provost on earlier occasions and knew him as “a high-risk escape artist.” He also said that Mr. Provost was a well-known career offender. Constable Coulthart recalled that, on an earlier occasion, Mr. Provost had been found hiding under some insulation in another residence.

[46] During the morning of September 14^th steps were taken by the police to obtain the issuance of an “Authorization to Enter a Dwelling House.” Constable Jennifer McLinton, who I found to be a credible witness, testified that she was/is an investigator in the partner assault section of Ottawa Police Services. She said that upon her arrival at work early on September 14^th, she learned about what had transpired since late the previous night. She reviewed the reports that were available at that time and later appeared before a Justice of the Peace. Her understanding was that a male had been “observed” by officers letting two dogs into the residence from the rear yard. She understood that the plaintiff had an on-and-off relationship with Mr. Provost. Her written report contains the following note: “he has stayed with her at her residence and he was likely inside.” She also concluded that the plaintiff had called and spoken to with Mr. Provost who, at the time, was in her townhouse. In fact, she testified that she called the plaintiff who confirmed that she had spoken with Mr. Provost. At that time the plaintiff expressed concerns to Constable McLinton for the safety of her dogs. Constable McLinton testified that she did not think she would have given the plaintiff any assurances that the dogs would not be hurt.

[47] In her occurrence report Constable McLinton said:

At 0745 hrs. I phoned PROVOST’s lawyer, Patrick McCANN … and appraised him of the situation. OLSZEWSKI felt that Mr. McCANN may be able to convince PROVOST to turn himself in. At 0820 hrs. I spoke with Mr. McCANN again who told me that he tried calling the residence but PROVOST did not answer. A message was left by McCANN.

[48] Constable McLinton noted that “a decision had been made to hold the scene until a Feeney warrant could be obtained.” A Feeney warrant, of course, is a warrant issued pursuant to s. 529 of the Criminal Code of Canada, as amended, authorizing police officers to enter a dwelling-house for the purpose of making an arrest. The section reads as follows:

529. (1) A warrant to arrest or apprehend a person issued by a judge or justice under this or any other Act of Parliament may authorize a peace officer, subject to subsection (2), to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending the person if the judge or justice is satisfied by information on oath in writing that there are reasonable grounds to believe that the person is or will be present in the dwelling-house.

(2) An authorization to enter a dwelling-house granted under subsection (1) is subject to the condition that the peace officer may not enter the dwelling-house unless the peace officer has, immediately before entering the dwelling-house, reasonable grounds to believe that the person to be arrested or apprehended is present in the dwelling-house.

[49] During her final submissions counsel for the plaintiff asked me to set aside the Authorization to Enter a Dwelling House on the grounds that some of the information provided to the Justice of the Peace was not accurate. Counsel, however, did not fully cross-examine Constable McLinton as to just what information was put before the Justice of the Peace and I was not provided with copies of any information that was put before the justice. Accordingly, I decline to set aside the authorization on these grounds. The authorization itself is included in Exhibit 1 at tab 18. It is entitled “WARRANT FOR ARREST WITH OPTIONAL AUTHORIZATION TO ENTER A DWELLING HOUSE.” Below that heading there is another heading as follows: “AUTHORIZATION TO ENTER A DWELLING HOUSE.” In other words that particular document does not contain a warrant for arrest. The defendants’ position is that the authorization must be read with the warrant that was issued February 2, 2006, which was also entitled WARRANT FOR ARREST WITH OPTIONAL AUTHORIZATION TO ENTER A DWELLING HOUSE. That warrant is found at Exhibit 1, tab 17. The document authorizes the arrest of Mr. Provost and sets out the particulars of the charges against him. The form then reads “AND WHEREAS:*”. At the bottom of page 1 of the document the following appears: “Initial applicable recital.” The document contains ten recitals. None of the recitals are initialed. Recital (j) has two asterisks beside it. The explanatory note at the bottom of page 2 reads as follows: “For any case not covered by recitals (a) to (i), insert recital in the words of the statute authorizing the warrant.” Someone has written in opposite paragraph (j) “WHEREABOUTS UNKNOWN.”

[50] While I make no specific finding, I have some concerns about the validity of the original Authorization to Enter a Dwelling House in this document – i.e. Exhibit 1, tab 17. However, those doubts are resolved by the fact that a new authorization was obtained on September 14, 2006. It would appear from the evidence I heard during this trial that, that authorization was validly made or given. While some evidence may have been put before the Justice of the Peace that was not accurate, I am satisfied that the application for the authorization was made in good faith and that Constable McLinton relied on information which she believed to be correct and probably was, for the most part, correct. I cannot and do not speculate as to what transpired before the Justice of the Peace. In order to set aside the authorization I would require much more thorough evidence than what I heard at trial.

[51] While the plaintiff, in her statement of claim, pleads trespass she does not expressly attack the validity of the authorization in her pleading. She does plead, however, that she was not presented with “a warrant or paperwork of any kind” by the police prior to their entry into the townhouse. In paragraph 15 of her statement of claim she pleads as follows:

The Plaintiff states that the police officers, in carrying out their actions and in not presenting the Plaintiff with a warrant or any other type of paperwork prior to entering her home, engaged in deliberate and unlawful conduct in his/her capacity as such and that the officer knew or ought to have known that his/her conduct was unlawful and likely to harm the plaintiff.

[52] The evidence is, of course, that the plaintiff was not in, at, or near her residence at the time of the attempted arrest and entry into her townhouse on September 14th. By the time the authorization was issued and later amended “Tactical” officers had already been given notice that the Tactical Team would be required for the purpose of effecting the entry and arrest and the officers were awaiting delivery of the authorization.

[53] At Constable McLinton’s personal appearance before the Justice of the Peace the authorization was issued. She took it to Richmond Road; however, once there she observed that the “D” had been omitted from the address. Therefore she returned to the Justice of the Peace to have it amended accordingly.

[54] At her appearance before the Justice of the Peace, according to Constable McLinton, she drew to the Justice’s attention that while the plaintiff had confirmed that there were no firearms or children in the premises, there were two “guard” dogs in the residence – a “California Red-Nose Pit Bull” and an “American Brindle Pit Bull.” Constable McLinton’s handwritten report contains the following sentence: “Although denied by Olszewski, previous information indicates that the dogs are trained to attack at any sign of aggression.”

[55] In giving her testimony Constable McLinton added that she telephoned the plaintiff to question her about the dogs at which time the plaintiff confirmed that they had been trained as guard dogs. I accept Constable McLinton’s testimony as credible. I do not recall hearing any testimony from Constable McLinton confirming what details about the dogs were explained to the Justice of the Peace. The Authorization does not refer to the dogs in any manner whatsoever. The only condition spelled out in the Authorization is the usual one that reads: “Subject to the condition that you may not enter the dwelling-house unless you have, immediately before entering the dwelling-house, reasonable grounds to believe that the person to be arrested or apprehended is present in the dwelling-house.” For the record, I find as a fact that the police did, indeed, believe that such grounds existed. The Authorization (Joint Document Book, Exhibit 1, at Tab 18) also contains the following wording:

Whereas there are reasonable grounds to believe that prior announcement of the entry would

(a) expose the peace officer or any other person to imminent bodily harm or death;

or

(b) result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.

This warrant is also issued to authorize you to enter the dwelling-house without prior announcement, subject to the condition that you may not enter the dwelling-house without prior announcement unless you have, immediately before entering the dwelling-house,

(a) reasonable grounds to suspect that prior announcement of the entry would expose the peace officer or any other person to imminent bodily harm or death

or

(b) reasonable grounds to believe that prior announcement of the entry would result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.

The authorization to enter the dwelling house for the purpose of arresting or apprehending the accused shall be carried out in accordance with follow terms and conditions: ...

[56] In these circumstances I am satisfied that the warrant for arrest and the authorization were validly issued and that, accordingly, the police officers were entitled to rely on them. It seems to me that the plaintiff, having raised these issues in her pleadings, was required to satisfy the court, on a balance of probabilities, that the warrant and authorization were defective in some manner. As aforesaid, I have not been satisfied that the warrant and authorization were defective.

[57] On September 14^th the officers connected with the Tactical Team were summonsed to a Nepean Fire Station in order to be briefed by Sergeant Logan. The plan was to attempt to perform what is known as a door-knock arrest. This involves attempts to cause the person being sought to give himself up to the police but that, if this does not occur, it involves a series of escalating steps or actions leading finally to police entry into the premises. I find that all of the police officers involved who gave evidence at trial held an honest belief that Mr. Provost was in the premises but had refused to come out.

[58] Upon their arrival at the Richmond Road premises the officers were deployed to the front and rear of the townhouse in order to maintain containment. The officers at the rear of the residence were accompanied by a police dog and handler. In addition, Tactical Paramedics arrived and stood by as developments unfolded.

[59] At 10:27 a.m. four officers approached the front door. One of them pounded on the door. The objective, as aforesaid, was to attempt to persuade the occupant to surrender. This resulted in barking by the dogs; however, there was no response from any human being. The officers also shouted to the occupant to come out. This was repeated several times but with negative results.

[60] The evidence is that the dogs were heard to bark every time the officers approached the residence. They were seen by many of the officers to jump up and down every time someone approached. During this period of time the police also used a loudhailer at the front and at the rear of the residence with the same “Please come out” message. The police also employed a camera attached to the end of a pole at both the front and the back of the house with the object of observing what was taking place inside the house. No one was seen using this procedure.

[61] The officers also telephoned the land line in the residence on several occasions. Once again, there were negative results – there was no answer. Voicemail messages were left however.

[62] In response to a question concerning what considerations were taken into account concerning the dogs prior to entry, Sergeant Capaday testified, and I accept his answer as truthful, that the Immediate Action Team (“IAT”) members discussed the possibility of using various devices. They considered the possibility of using a dog noose attached to a pole, a piece of equipment that they brought with them to the scene. However, they abandoned the idea of using such an instrument as being impractical because the tool would be ineffective. It is clear, however, that no detailed plan as to how the dogs should be dealt with was discussed or adopted prior to entry into the premises. I find that the decision not to pursue the use of the pole and noose was a reasonable one.

[63] In her statement of claim the plaintiff pleads that “the police officers present did not contact the Humane Society or take any other steps in order to ensure the safety of the dogs.” While I did hear evidence that the bodies of the dead dogs were removed by someone from the Humane Society and taken to its premises, no one from the society was called to give evidence and I heard no expert testimony on what the society might have done had it been involved. Therefore, I am left to simply speculate as to what it might have done. I should add that I really have no informed idea as to what it could have done.

[64] While I am on the subject of the lack of expert testimony I should also comment that no expert testimony was offered with respect to the carrying out of an arrest and entry into a dwelling house in these circumstances. One officer testified at trial that the operation was a “text-book” one. That self-serving evidence was not of much assistance to me.

[65] When the preliminary steps proved ineffective, two officers approached the rear patio doors following which they fired two Arwen rounds through the doors resulting in holes being made. An Arwen, I was informed at trial, is a type of impact weapon frequently used in crowd control and is also employed for the purpose of breaking windows or walls. The weapon fires an object similar to a small hard rubber ball. When this was done the officers heard barking from the dogs. When the back door was breached one or more of the officers noticed one of the pit bulls jumping up and down in the upstairs right bedroom window.

[66] This was followed by the detonating of two distraction devices in the backyard and near the rear door. These devices are used to overwhelm one’s senses. This was followed by breaking a second-storey window. While these events were taking place the officers also again employed the loudhailer.

[67] Next, the officers fired two T-16s. I was told that these resemble, somewhat, a grenade but that no shrapnel or fragmentation is produced when they explode. A CO₂ cartridge is used. When the instrument explodes it ejects an organic pepper spray in powder form. When the explosion takes place there is a resulting noise which, the evidence revealed, would have a negative effect on an animal or a human being. Sergeant Hayes testified that, in his experience, he has observed different reactions or impacts on dogs from this apparatus. He agreed that the device leaves a residue or stain mark. Indeed, these marks were obvious throughout the house after the entry was terminated.

[68] Two of these devices were shot through the second-storey rear windows. The practice, according to the testimony, is to use one or two per room. Their purpose is to gain a person’s attention and to make his/her surroundings uncomfortable. The spray that is released stings the eyes of anyone in the vicinity and is somewhat disabling. Eventually six of these objects were deposited inside the townhouse. More telephone calls were made while this was going on. Two of the T-16s were discharged into the main floor level through the kitchen window and the front door. Barking was heard from inside the residence following the discharge of the aforesaid instruments.

[69] The IAT consisting of five police officers in full gear, including gas masks, then entered the premises through the rear patio doors. Prior to their entry no attempts were made by the Tactical Team to contact a municipal control by-law officer. I mention this because this precaution was suggested on cross-examination of one of the police officers. No evidence was tendered regarding what a by-law officer could have done.

[70] The officers testified that they did not enter the premises with the intention of killing the dogs. I accept this evidence as credible; however, it is clear to me that they should have contemplated that the need to kill the dogs would be a possibility. At least one officer testified that he was surprised with the manner in which the dogs acted following their entry. I must observe that I have some difficulty with this statement.

[71] Once again I point out that no expert testimony was presented at trial on this issue. However, based on my own life experience and knowledge, I would certainly assume that the two pit bulls would be expected to be upset, agitated, and that they would probably act aggressively when confronted. The fact remains, however, that the presence of the dogs was a reality that the officers would be called on to deal with.

[72] In any event, the evidence was that the entry was made in order to arrest the subject, Mr. Provost, and not “to deal with dogs per se.” Sergeant Hayes, the Tactical Team commander, testified that it was not police practice to dictate to the officers on the ground (i.e. in the townhouse) what they should do if dogs were encountered. He said that there was no specific plan – that the focus was on finding the person being sought. According to his testimony, “dogs are secondary.” While this may sound somewhat harsh, the statement, in my opinion, has merit. The safety of humans must prevail over that of animals.

[73] Inspector Sanford, the officer in command, testified that it was not uncommon for police officers to attempt to effect arrests where pit bulls are present, especially in situations where drug dealings are involved. He said it was not the concern of the police that safety of animals in the house be preserved. He said that the concern is with respect to the safety of human beings. Again, while somewhat harsh, this statement, in my opinion, has merit in the context of what was happening that day.

[74] I understood the testimony of Inspector Sanford and Sergeant Hayes to mean that the presence of animals in the townhouse was secondary to the main purpose of the entry, i.e., to arrest Mr. Provost and, hopefully, avoid injury to the officers and the suspect. Both officers stressed the fact that, in this case, the entry was a high-risk one based upon their knowledge of Mr. Provost’s reputation. My comments concerning the merit of the statements in question are not to be taken as applicable in all circumstances. I make them in the light of the particular facts of this case.

[75] Upon entering the townhouse the officers conducted a search of that level. They did not find anyone. They then lined up to proceed upstairs. Constable Rukavina was in the lead. He was followed closely by Constable Hutchins and he was followed by Constable Rowan, Sergeant Capaday, and Constable Leclerc. When the first two officers reached a turn in the stairs leading upstairs the two dogs were seen on the landing. The dogs were observed to be acting aggressively. They were growling, snarling, baring their teeth, and barking. It became apparent that the dogs were not about to give up their ground. They continued to act in a threatening manner. Constable Rukavina attempted to coax or distract the dogs with some dog milk bone treats which one of the officers handed to him. His initial thought was to attempt to immobilize the dogs with a conductive energy weapon (Taser). He quickly abandoned that idea as impractical. He concluded that it would simply not be effective given the size of the dogs, their ability to move quickly, and the restrictions on the limits of a Taser in the circumstances. This decision, in my opinion, was a reasonable one.

[76] It also occurred to him that if he missed with the Taser, he might simply end up further aggravating the dogs. Accordingly, Constable Rukavina attempted to coax or distract the dogs with these dog biscuits in the hope that he would be able to have them enter one of the rooms in which case he could possibly close the door and, thus, contain them. He described the dogs as extremely aggressive. Constable Rukavina’s strategy, however, did not work. After a short time one of the dogs, Oz, began to proceed down the stairs towards the officers growling and bearing his teeth. This caused the officers to back up towards the kitchen area. As the pit bull closed in on Constable Rukavina he, Constable Rukavina, shot the dog with his service pistol striking the pit bull in the head. He testified he did this to protect his life or to prevent serious bodily injury to himself. He testified that he felt that he had no option but to do this. I am not prepared to second guess his decision which, clearly, was made under threat to him and others. Sergeant Capaday testified that there was no doubt in his mind that the police officers would be attacked and bitten by the dogs – i.e. that they were under attack.

[77] Constable Rukavina testified that Oz, after being shot, turned around and proceeded upstairs. He said that the pit bull quickly reappeared with its teeth barred, mouth opened, and ears back and charged towards him whereupon he fired four additional rounds and assumed that each round struck the animal while it was descending the stairs. At the same time Constable Hutchins fired three shots from his C8(AR-15 riffle) striking the dog each time. Notwithstanding this, the dog continued to run past Constable Rukaniva’s feet and entered the kitchen area at which time Constable Rowan shot the dog with his Arwen weapon.

[78] Constable Leclerc testified that the pit bull passed Constable Rowen and approached him at which time he deployed his conductive energy device while “fearing that it, the dog, would cause me serious bodily harm.” Finally, the dog fell to the ground. Following the incident involving Oz, the other pit bull, Cash, charged towards the officers. Constable Hutchins fired four shots into the dog. The dog began to convulse whereupon he, Constable Hutchins, fired another shot to euthanize the dog. I am, as well, not prepared to second guess the conduct of any of these police officers while these events were unfolding. In my opinion, they were confronted with an attack or attacks by two vicious pit bulls – an attack that placed them at risk of serious injury or worse. I reach this conclusion even though no officer was actually bit or otherwise injured by the dogs. I will have more to say about pit bulls later in these Reasons.

[79] As aforesaid, there existed a belief that the dogs had been trained as attack dogs. Given this belief, it seems to me that it would have been reasonable for the police to have discussed strategy before entering the townhouse and to have developed some sort of plan to deal with the dogs especially because they knew, or should have known, that the dogs would undoubtedly have become quite agitated by all of the pre-entry tactics employed by them. On the other hand, as aforesaid, I heard no expert testimony from either party to assist me in determining whether there were appropriate strategies that could have been adopted or precautions that could have been taken, and whether they would have been effective. In my opinion, it would not be appropriate for me to speculate about what might have been done in the absence of pertinent and relevant expert testimony. I must, of course, base my decision on the evidence presented at trial and my own common sense.

[80] In cross-examination, Inspector Sanford testified that it was common knowledge that the pit bulls were owned by Mr. Prevost. He was the only witness to make such a statement. The pit bulls were owned by the plaintiff. He also said that “we had information from two officers on the scene that they had seen a male person in the home.” This is not consistent with the evidence taken as a whole. Notwithstanding this testimony, I am not persuaded that, even believing those things, such beliefs add anything of significance to my conclusions in this matter on the issue of whether the police conduct was reasonable or wrongful or, perhaps, a mixture of both. He did testify, however, and as aforesaid, that it was not a police concern that there were animals in the house, meaning that the safety of the animals was secondary to the safety of any human being.

[81] Following these events the basement area was searched with negative results. It appears from the photographs and a video disc that were entered as exhibits that the ceiling tiles were removed and scattered about the room. In the result, however, no person was seen or captured in the residence during the search of the premises. Whoever was in the townhouse, had escaped.

[82] Following the completion of the entry Constable McLinton contacted the plaintiff by telephone. She had not been at the premises since she departed with her friend earlier that morning. She was again with her friend Melissa. Constable McLinton also contacted the Police Victim Crisis Unit to put it on notice of what had transpired. Constable McLinton told the plaintiff that no arrest had been carried out but that her dogs had been killed. Indeed, she said that they had to be “euthanized.” She did point out, however, that she was not sure of the exact wording she employed. In any event Constable McLinton testified that Ms. Olszewski was very upset to the point where she, Constable McLinton, referred her to her supervisor.

[83] When the plaintiff returned to her house that afternoon with her friend Melissa, after the call from Constable McLinton, she allowed Melissa to enter the house prior to her. Melissa opened the front door and told the plaintiff “you can’t go in there.” Nevertheless, the plaintiff entered and found evidence of blood all over the place and, as well, spent shells and bullets on the floor. She also observed broken windows, broken doors, a broken shower rack, damaged and stained carpets and damaged furniture. Melissa described the damage as “World War III.”

[84] The plaintiff was in an extremely agitated state. She screamed and shouted at the police officers who were still there asking them to leave. She testified that she began “freaking out.” She said she ignored what one of the officers was trying to say to her whereupon he “got mad.” She testified that just prior to her leaving the residence after her “freaking out”, that particular officer said “Okay, enjoy your dogs.” She testified that she interpreted this as “Basically he told me to fuck off.” She said she used profane language while screaming at the police officers. Melissa described the plaintiff as being hysterical. Melissa also testified that before she and the plaintiff left the residence to attend at the Humane Society where the dead pit bulls had been taken Ms. Olszewski began yelling at a man who appeared to be looking in the townhouse windows. Ms. Olszewski told him to leave to which he replied that he was there to fix the broken glass. Apparently, he left as requested.

[85] Exhibit 1, Tab 4 is a series of color photographs which the plaintiff took later that day prior to the cleanup. She also obtained a copy of a local TV station video of the damage. The video and the still pictures are consistent. These establish, without a doubt, that her townhouse was in considerable disarray and had suffered some serious damage. Various witnesses called by the defendants agreed that the pictures were representative of the reality. The pictures show considerable blood stains on the floors and walls; staining of the furnishings and floors which are probably the result of the pepper spray; bloodied clothing; ceiling tiles on the floor and furnishings; broken windows; and bullet holes in the walls.

[86] Exhibit 1, Tab 38 is a list of what the plaintiff said was damaged and, in addition, a summary of certain out-of-pocket expenses. This list was prepared approximately four years after the fact. Among other things she lists broken windows; holes in the walls; carpet damage; blood stains; bullet holes in the walls, ceiling and floors; a broken pipe under the bathroom sink; a damaged air conditioner; a damaged couch; a damaged Persian rug; a damaged picture; damaged chairs in the living room; a broken glass table; damaged curtains; damaged mattresses; a damaged shower rod; damaged sunglasses etc.

[87] Ms. Olszewski testified that some of her neighbours helped her by putting up some tarps and boarding to cover up the exterior damage. The interior cleanup was done by her and some of her friends over time and, in addition, where necessary, by professionals.

[88] I find that, notwithstanding that her residence was left in great disarray and with some significant damage throughout, I cannot conclude that this property damage was the result of wrongful or unreasonable conduct on the part of the police officers given all the relevant circumstances. As well, I cannot conclude that, in the circumstances, more force was used than was necessary. I will deal expressly with the pit bulls later. When the police officers entered the property they were involved, as mentioned earlier, in what they believed to be a high-risk arrest. They did what they thought was reasonable. However, an operation such as the one in question is certainly not a tea party. Police involved in the execution of a high risk arrest should not be subjected to a detailed, after the fact critical analysis of their conduct. There must be clear evidence that their conduct was wrongful or unreasonable in the circumstances. The officers, quite clearly, showed little respect for the plaintiff’s property. I find, however, that police officers are entitled to consideration by the Court of the fact that they are required, in their role as police officers to conduct dangerous operations where their first priority has to be their safety, the safety of the suspect, and the safety of any other human beings. I find that where there is conflict between the safety of human beings and animals, the safety of human beings must come first. Obviously, however, the police officers must not use more force than is necessary. I have not been satisfied on a balance of probabilities that they did so. Indeed, I have been satisfied by the defendants that no more force than was necessary in the circumstances was used.

[89] No expert testimony was tendered regarding the characteristics of pit bulls in general or these pit bulls in particular. I am, of course, aware from my own personal knowledge that this is a controversial topic. To the plaintiff, her pit bulls were beautiful, well-behaved pets. To others they are seen as dangerous and vicious animals warranting great caution. The police officers saw them as a serious threat to their safety. Indeed, the Province of Ontario has adopted legislation dealing with pit bulls – the Dog Owners’ Liability Act, R.S.O. 1990 c.D. 16, amended as of March 9, 2005. Section 6 the Act imposes a ban on owning a pit bull “except as permitted by this Act or the regulations.” Section 7 deals with the ownership of “restricted pit bulls” which are defined as follows: a pit bull that “is owned by a resident of Ontario on the day subsection 1(16) of the Public Safety Related to Dogs Statute Law Amendment Act, 2005 comes into force” or where the pit bull “is born in Ontario before the end of the 90-day period beginning on the day subsection 1(16) of the Public Safety Related to Dogs Statute Law Amendment Act, 2005 comes into force.” Subsection (2) of s. 7 provides that despite the ban on owning a pit bull “a person may own a pit bull if it is a restricted pit bull.” However, pursuant to subsection (3) of s. 7, “A person who owns a restricted pit bull shall ensure compliance with the requirements set out in this Act and the regulations that relate to restricted pit bulls ...”

[90] The applicable regulation is Ontario Regulation 157/05 – Pit Bull Controls. Examples of the controls to which an owner might be subjected are that an owner of a restricted pit bull must ensure that the pit bull is at all times equipped with a muzzle and secured with a leash unless the pit bull is within an enclosed property; a collar or harness must be properly fitted; the movement of the pit bull shall be controlled by a person by means of a leash attached to the collar or harness; the leash is not more than 1.8 metres in length; the leash and the attachment between the leash and the collar or harness must be strong enough to prevent the pit bull from breaking any of them; and the pit bull must be sterilized by a veterinarian. I note, as well, that there are exemptions applicable to restricted pit bulls.

[91] The bottom line, however, is that the statute and the regulation are clear statutory recognition that a pit bull can be a very dangerous animal. The police officers entering the plaintiff’s premises on September 14, 2006 were entitled to use all reasonable precautions to save themselves harmless from the pit bulls. Not surprisingly, the pit bulls acted in a manner consistent with their generally accepted characteristics. In my opinion, the police were entitled to adopt strong measures to protect themselves. This would include shooting to kill. The police officers did not have the luxury of being able to take other evasive action.

[92] Inspector Sanford was not aware of the detail of what steps, if any, were taken by the police or the Municipality on its behalf to clean up the residence. He briefly described the usual processes, which can involve the local Humane Society after the fact, and the involvement of the local Municipality to secure and clean up premises after the fact. His report of the incident details the fact of some damage. The report contains the following notation “city workers were contacted to assist with securing the windows and/or doors of the home damaged during the operation. The victim was also provided with a contact number for assistance in cleaning up the interior of her home from the pepper spray. The Humane Society was notified to assist with the removal of the dead animals.” The defendants submit that there was no further after the fact involvement because the plaintiff indicated that she wanted nothing further to do with the police.

[93] I am satisfied that the plaintiff’s conduct following her return to the house after viewing her dogs was such that it contributed to the failure of the defendants to follow up to ensure that steps were taken to help in the clean up and repairs that were necessary. I certainly appreciate that, given what she saw, the plaintiff would have been quite upset. However, in my opinion, she cannot now complain that no one apologized to her nor can she be critical of the defendants’ failure to somehow assist in the clean up and repairs. The plaintiff testified that she tried to contact a few municipal councillors but that no one ever got back to her. I was not shown any written documentation requesting assistance.

[94] The evidence at trial was, to say the least, very sparse on the question of attempts or offers by the defendant Board or the municipality to clean up and effect repairs and, as well, regarding attempts by the plaintiff to have them do so. There can be no doubt, however, that the plaintiff had no desire to have any ongoing relationship with the police. At the conclusion of oral argument I advised counsel that I was not satisfied that I had been provided with sufficient legal authorities concerning the issue of liability. Counsel were instructed to provide me with further authorities, which they did. Counsel for the plaintiff included in her written submissions documents entitled “Excerpts from the Ottawa Police Services website.” Since there was no indication of any agreement between counsel concerning the submission of further evidence, and since I did not ask for further evidence, I have ignored these “excerpts” other than to note that they deal with the processing of claims arising out of loss of property due to police actions.

[95] Based on the foregoing and the relevant legal principles that follow, I have concluded that, in the peculiar circumstances of this case, the action should be dismissed. Notwithstanding this conclusion, I will, however, later in these Reasons, attempt to assess the damages claimed by the plaintiff.

The Applicable Law

[96] As aforesaid, the plaintiff argues that the entry was illegal. I have already set forth in these Reasons the provisions of s. 529 of the Criminal Code. I am satisfied on the evidence that the information supplied to the Justice of the Peace was such as to constitute “reasonable grounds to believe that the person is or will be present in the dwelling house.” I am also satisfied on the evidence that immediately before entering the dwelling house, the police officers possessed reasonable grounds to believe that Mr. Prevost was present in the dwelling house. I have not been persuaded by the plaintiff that there is any reason to set aside or invalidate the authorization issued on September 14, 2006, or the arrest warrant. Both the warrant for arrest and the authorization were valid.

[97] In Lahaie v. Canada (Attorney General), 2010 ONCA 516 the Court of Appeal explained the law relative to setting aside search warrants as follows: (these comments would equally apply to an authorization such as we have here.)

39 The trial judge did not apply the customary test for reviewing a search warrant, namely, whether on the record as excised and amplified, the authorizing judge could have issued the warrant: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at paras. 51-59. Rather, he adopts the language of Romilly J. in R. v. Maton (2005), 2005 BCSC 330, 133 C.R.R. (2d) 72 (B.C.S.C.), at para. 22, concluding that the “lack of candour” by the police officer affiant of the information to obtain “was so subversive of the prior authorization process that the resulting warrant must be set aside to protect the process and the preventive function it serves.”

40 Although it is open to a reviewing judge to consider quashing a search warrant where the affiant is shown to have deliberately given false material statements or deliberately omitted material facts from an information to obtain with the intention of misleading a justice of the peace, the threshold for setting aside a search warrant in such circumstances is high: see R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.), at paras. 42-43, quoted with approval in Araujo, at para. 54:

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves.

[98] The plaintiff concedes that this action was not framed as a Charter case. The Charter has not been pleaded. However, s. 529 and related sections are the result of the Supreme Court of Canada Charter decision in R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13. The Supreme Court held that the common law right to make a warrantless arrest on private premises must comport with Charter values and that, in general, the privacy interest in a dwelling house outweighs the interest of the police and warrantless arrests in dwelling houses are prohibited. The Court held that an arrest warrant by itself is insufficient protection of a suspect’s privacy rights. Entry into the house must be authorized.

[99] Section 529.2 of the Criminal Code states:

529.2 Subject to section 529.4, the judge or justice shall include in a warrant referred to in section 529 or 529.1 any terms and conditions that the judge or justice considers advisable to ensure that the entry into the dwelling-house is reasonable in the circumstances.

[100] No conditions were stipulated in the authorization obtained from the Justice of the Peace in addition to those stipulated in “form 7.” Obviously, it is incumbent upon the seeker of the authorization to properly inform the Justice of the Peace, or Judge, as the case may be, so that he/she can determine whether conditions should be inserted. No authority has been produced to me establishing that in these circumstances, it was necessary to advise the Justice of the Peace of the existence of the pit bulls. In addition, I have not been persuaded that, even if full details had been supplied to the Justice of the Peace he would have stipulated conditions bearing in mind that the police are required to act reasonably in the execution of the authorization.

[101] The next section requiring consideration is s. 25 of the Criminal Code which reads as follows:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. (underlining added)

(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;

(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;

(c) the person to be arrested takes flight to avoid arrest;

(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and

(e) the flight cannot be prevented by reasonable means in a less violent manner.

(5) A peace officer is justified in using force that is intended or is likely to cause death or grievous bodily harm against an inmate who is escaping from a penitentiary within the meaning of subsection 2(1) of the Corrections and Conditional Release Act, if

(a) the peace officer believes on reasonable grounds that any of the inmates of the penitentiary poses a threat of death or grievous bodily harm to the peace officer or any other person; and

(b) the escape cannot be prevented by reasonable means in a less violent manner.

[102] Counsel for the plaintiff concedes that there is no “strict liability” applying to police officers who attempt to effect an arrest in a dwelling house, and, thus, a Police Services Board, for damages that might arise out of their exercising an arrest warrant and/or acting pursuant to an authorization to enter a private dwelling. Section 25, of course, justifies police action provided the stipulated conditions are met. In this case, the police officers were authorized by law to arrest Mr. Prevost and, in the course of doing so, to enter into the plaintiff’s residence. I find that the police officers acted on reasonable grounds in the exercise of the warrant and authorization to effect an arrest and enter the premises in doing so. I also find that, given the circumstances, the police officers used no more force than what was necessary. I find that they acted in good faith. I also find that the killing of the dogs by the police officers followed their belief, held on reasonable grounds, that it was necessary to kill the dogs in the interests of their safety and self-preservation.

[103] Although the authority is dated with respect to the right to enter a dwelling house, the classic interpretation of s. 25 is found in Eccesl v. Bourque, [1975] 2 S.C.R. 239. At page 742 the Supreme Court of Canada said:

...the section merely affords justification to a person for doing what he is required or authorized by law to do in the administration or enforcement of the law, if he acts on reasonable and probable grounds, and for using necessary force for that purpose.

[104] Eccesl v. Bourque, supra, is also authority for the proposition that s. 25 of the Code must be strictly construed in favour of the tenant where there is any ambiguity. In my opinion, in this case, there is no ambiguity in light of the fact that the police were armed with a validly issued Warrant for Arrest and an Authorization to Enter a Dwelling House.

[105] The police officers (i.e., peace officers) were both required and authorized by law to execute the Warrant for Arrest and Authorization to Enter a Dwelling House in order to enforce the law. Therefore, provided they acted reasonably and provided that they did not use more force than was necessary for the purpose of the enforcement of the law, they were justified in doing so. As aforesaid, I am, on the evidence, satisfied that the police officers in question acted in good faith. I am satisfied that, on a consideration of all of the evidence, the defendant, and the police officers, are entitled to the benefit of s. 25 of the Code – i.e. the exclusion of liability. The defendant Board has satisfied me that the police officers acted reasonably both before and after they entered the dwelling house. It was reasonable for them to assume that Mr. Provost was in the residence; that effecting an arrest, because of Mr. Provost’s reputation, would be dangerous; and it was reasonable for them to take positive action to protect themselves from the pit bulls. Their execution of the warrant and the authorization was aggressive; however, being aggressive was not unreasonable in the circumstances. The conduct of the police officers cannot be judged against a standard of perfection. (See R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C.)).

[106] In Crampton v. Walton, 2005 ABCA 8 the Alberta Court of Appeal set out in detail the three branches of a test which are:

I) was required or authorized by law to perform an action in the administration or enforcement of the law;

II) acted on reasonable grounds in performing that action; and

III) did not use unnecessary force.

The Board has satisfied me that the conduct of the police officers met these tests. In Campton v. Walton, supra, the court, at paras. 42 and 43 had this to say:

The final element of s. 25(1) defence requires the court to determine whether unnecessary force was used. In making this assessment, the court is to determine whether the use of force was objectively reasonable in light of the circumstances faced by the police officer: Bolianatz at para. 36; Vlad v. Edmonton Chief of Police (2002), 2002 ABQB 518 at para. 133.

Because both the second and third branches of the s. 25(1) defence use the modified objective standard to review police conduct, the demarcation between the two elements is sometimes blurred. To clarify, the second branch requires the court to determine whether the police acted on reasonable grounds in carrying out the action. The police could, for example, establish reasonable grounds for using force. The third branch focuses exclusively on the amount of force used. Even if the police acted on reasonable grounds in executing the warrant in an aggressive manner, the will be denied the protection of s. 25(1) if they used excessive force.

[107] It is my opinion that the police officers had no reasonable alternative to shooting at the dogs with intent to injure or kill them notwithstanding that they had no detailed plan in place concerning what they would do in the event they were confronted and threatened by the dogs. It is my opinion that the decision to shoot the dogs was a decision made by them and, while it might not necessarily have been the only decision, it was a reasonable one based on what they knew. I find that the amount of force used was not excessive even though the result was gruesome.

[108] During the trial and in my deliberations in this matter it occurred to me that there were probably other precautions the police could have taken before entry with a view to protecting themselves from the dogs and, indeed, protecting the dogs. I must, however, caution myself about the possibility at arriving at an unreasonable conclusion through speculation. My duty is to decide this case on the evidence put before me. I am not an expert in animals nor have I ever owned a dog or shared habitation with one. Perhaps an expert in pit bulls could have been asked to be on scene; perhaps some kind of drug could have been fed to the dogs; perhaps some kind of net could have been used; perhaps the dogs could have been induced somehow to leave the residence; and so on. I realize that all of these “ideas” are subject to some debate. In the end, I am left with the evidence that the planning for the entry and arrest did not contain any detailed plans concerning how to deal with the dogs. The decision regarding what to do with the dogs while carrying out the attempted arrest was left to the discretion of the individual officers, some of whom did consider some last minute options. In all the circumstances, I cannot conclude that leaving the decision to the officers on the ground was unreasonable. Essentially, I am left with the comment that the dogs are “secondary.” Does this, in the circumstances, constitute either wrongful or unreasonable conduct on the part of the police officers for whom the Police Services Board is vicariously liable? In my opinion the answer to this question is “No.” There is no liability here notwithstanding that the planning might, possibly, have been more extensive.

[109] Counsel for the defendant submits that “it is long established law that neither police officers nor Police Services Boards will be liable for property damage caused by police officers in carrying out a lawful entry into a home to attempt to effect an arrest pursuant to an arrest warrant.” He relies on the Supreme Court of Canada decision in Priestman v. Colangelo, 1959 CanLII 14 (SCC), [1959] S.C.R. 615. That case is concerned with allegations of negligence. Negligence has not been pleaded in this case. However, the decision is helpful.

[110] I rely upon the following quotes from the Supreme Court’s decision.

6 In British Cast Plate v. Meredith [(1792), 4 T.R. 794, 100 E.R. 1306.], an action was brought against the defendants who were acting under the authority of the commissioners appointed under a Paving Act, which authorized them to pave streets in the Parish of Christ-church in Surrey. In the course of doing so, the pavement was raised substantially which interfered with the user of the premises of the plaintiff which fronted on the street. Lord Kenyon C.J. said that it did not appear that the commissioners had been guilty of any excess of jurisdiction and, while some individuals may suffer an inconvenience under all such Acts of Parliament, the interest of individuals must give way to the accommodation of the public. Buller J. said in part (p. 797):

There are many cases in which individuals sustain an injury, for which the law gives no action; for instance, pulling down houses, or raising bulwarks, for the preservation and defence of the kingdom against the King's enemies. The civil law writers indeed say, that the individuals who suffer have a right to resort to the public for a satisfaction: but no one ever thought that the common law gave an action against the individual who pulled down the house, &c. This is one of those cases to which the maxim applies, salus populi suprema est lex. If the thing complained of were lawful at the time, no action can be sustained against the party doing the act.

9 There may, however, be duties imposed upon public officers and others for the protection of the public, the performance of which in many circumstances may involve risk of injury to third persons.

16 In deciding whether in any particular case a police officer had used more force than is reasonably necessary to prevent an escape by flight within the meaning of subs. 4 of s. 25 of the Code, general statements as to the duty to take care to avoid injury to others made in negligence cases such as Polemis v. Furness Withey and Company [[1921] 3 K.B. 560.], Hay or Bourhill v. Young [[1943] A.C. 92.], and M'Alister or Donoghue v. Stevenson [[1932] A.C. 562 at 580.], cannot be accepted as applicable without reservation unless full weight is given to the fact that the act complained of is one done under statutory powers and in pursuance of a statutory duty. The causes of action asserted in these cases were of a different nature. (Underlining added)

18 Assuming a case where a police officer sees a pickpocket stealing from a person in a crowd upon the street and the pickpocket flees through the crowd in the hope of escaping arrest, if the officer in pursuit unintentionally collides with some one, is it to be seriously suggested that an action for trespass to the person would lie at the instance of the person struck? Yet, if the test applied in the cases which are relied upon is adopted without restriction, it could be said with reason that the police officer would probably know that, if he ran through a crowd of people in an attempt to arrest a thief, he might well collide with some members of the crowd who did not see him coming. To take another hypothetical case, assuming a police officer is pursuing a bank robber known to be armed and with the reputation of being one who will use a gun to avoid capture. The escaping criminal takes refuge in a private house. The officer, knowing that to enter the house through the front door would be to invite destruction, proceeds to the side of the house where through a window he sees the man and fires through the window intending to disable him. Would an action lie at the instance of the owner of the house against the officer for negligently damaging his property? If an escaping bank robber who has murdered a bank employee is fleeing down an uncrowded city street and fires a revolver at the police officers who are pursuing him, should one of the officers return the fire in an attempt to disable the criminal and, failing to hit the man, wound a pedestrian some distance down the street of whose presence he is unaware, is the officer to be found liable for damages or negligence?

19 The answer to a claim in any of these suppositious cases would be that the act was done in a reasonable attempt by the officer to perform the duty imposed upon him by The Police Act and the Criminal Code, which would be a complete defence, in my opinion. As contrasted with cases such as these, if an escaping criminal ran into a crowd of people and was obscured from the view of a pursuing police officer, it could not be suggested that it would be permissible for the latter to fire through the crowd in the hope of stopping the fleeing criminal.

[111] Counsel for the plaintiff submits that, pursuant to s.1 the Police Services Act, police officers are bound by the principle that there is a “need to ensure the safety and security of all persons and property in Ontario.” She argues that in s. 1 persons and property are held to the same degree of importance. I question the validity of that submission. Indeed, the proposition strikes me as unreasonable, especially where there might be a need to balance the safety of a human being against that of a pet. She also submits that, in this case, the plaintiff’s claim arises from a claim that the police deliberately and unnecessarily damaged her property. In my opinion the evidence in this case does not establish that the police “unnecessarily damaged her property” or that they “deliberately damaged her property.” She argues, as well, that “it is unacceptable that a search warrant would be regarded as a license to ignore the property rights of the occupant of the premises, which are essentially acts of vandalism” and that “a willful failure to appreciate the limits of their powers and their obligation to treat members of the public with courtesy and fairness cannot be condoned by the court.” She cites in support of these proposition, R v. Gogol, 1994 CanLII 19055 (ON CJ), [1994] 27 C.R. (4^th) 357 at para. 30 and R v. Thompson, 2010 ONSC 2862 paras. 69-75. I do not accept as valid the arguments that the acts of the police here were essentially acts of vandalism.

[112] In light of the Charter right to be secure against unreasonable search or seizure (s.8) I accept the proposition that police officers, when authorized to enter a dwelling house, must respect those rights in a responsible and reasonable manner. I agree that an arrest warrant with authorization to enter a dwelling house is not a “license to ignore the property rights of the occupant of the premises.” Obviously, police officers are not authorized to commit acts of “vandalism” and, obviously, a willful failure to appreciate the limits of their powers is not appropriate conduct.

[113] On the other hand, the Court must not lose sight of the fact that police work frequently involves inherently dangerous operations. In this case, I accept that the police had a reasonable belief that the operation was a high risk one. In R. v. Gogol, supra, the court found that the police officers deliberately damaged property. Here, that is not the case. Here the police had good reasons for doing what they did. In R. v. Thompson, supra, Code J. in para. 5 states:

From the earliest days of the Charter of Rights and Freedoms, it has been consistently held that one component of s. 8 is the requirement that searches be executed in a reasonable manner. Most notably, in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 it was held that:

A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search is carried out is reasonable.

[114] Most of the authorities with respect to unreasonable entry and unreasonable manner of search arise from as bi-products of applications to exclude evidence. While those cases are, of course, helpful, they do not deal directly with the matters and issues in this case i.e. a civil action for damages. Notwithstanding this reservation, I rely on the following remarks of Code J. in R v. Thompson, supra, at para. 59:

...there is no present authority requiring the police to obtain prior judicial approval, when seeking a search warrant, of any plan they might have to execute the warrant without making the common law announcements. Although it would be wise practice to disclose such a plan in the search warrant Information, as some police units presently do, the case law has not yet mandated such an approach as being required by s. 8 of the Charter. This may all change once the Supreme Court of Canada decides Cornell, supra.

[115] I note that the Supreme Court of Canada, in R. v Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142 held that the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises and cannot be expected to measure in advance with nuanced precision the amount of force the situation will require. In light of this, it is my opinion that it was not incumbent upon the police in this case to have laid out before the Justice of the Peace a plan as to how they intended to deal with the dogs before or upon entry. In any event, as I mentioned earlier in these reasons, Constable McLinton did tell the Justice of the Peace that there were dogs on the premises.

[116] In para. 69 of his decision Code J. said:

69 There is far less case law addressing the second branch of the Applicants' s. 8 argument. Very few cases seem to have addressed the question of whether the police are entitled to search in a way that causes unnecessary damage, unnecessary disorder and unnecessary disarray to lawfully possessed property in the home.

[117] He then went on to refer to R. v. Gogol, supra, and R. v. Rosales, 2010 ONSC 1992 and concluded that in the case before him there was deliberate and unnecessary damage to property and deliberate and unnecessary disorder and disarray in which the property was left and that, therefore, “rendered the manner of search unreasonable and in violation of s. 8 of the Charter.” The case at bar, of course, is distinguishable.

[118] I realize that Ms. Olszewski will probably find my decision rather harsh. She has now been twice victimized because of Mr. Provost’s conduct. As I indicated in the opening paragraph of these Reasons, the court is required to balance competing rights. The law applicable to a situation such as we have here states that the individuals’ rights “must give way to the accommodation of the public.” In other words, there are sometimes public interests that are superior to those of an individual. This is such a case. It is important to observe that the claim in this action concerns the conduct of police officers engaged in the performance of their duties.

[119] I turn now to the claim of “malfeasance of public office”, sometimes also referred to “misfeasance in a public office.” In Odhavji Estate v. Woodhouse, 2003 SCC 69, Iacobucci J., after reviewing the history of this tort, said, at para. 22, that there were two elements – the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer and the public officer must have been aware that both his or her conduct was unlawful and that it would likely harm the plaintiff. (See para. 23). In para. 24 he said:

24 Insofar as the nature of the misconduct is concerned, the essential question to be determined is not whether the officer has unlawfully exercised a power actually possessed, but whether the alleged misconduct is deliberate and unlawful.

[120] At para. 25 he said “Canadian courts also have made a deliberate unlawful act a focal point of the inquiry.” Then, at para. 29 he said:

29 The requirement that the defendant must have been aware that his or her unlawful conduct would harm the plaintiff further restricts the ambit of the tort. Liability does not attach to each officer who blatantly disregards his or her official duty, but only to a public officer who, in addition, demonstrates a conscious disregard for the interests of those who will be affected by the misconduct in question. This requirement establishes the required nexus between the parties. Unlawful conduct in the exercise of public functions is a public wrong, but absent some awareness of harm there is no basis on which to conclude that the defendant has breached an obligation that she or he owes to the plaintiff, as an individual. And absent the breach of an obligation that the defendant owes to the plaintiff, there can be no liability in tort.

[121] He then summarized his reasoning in para. 32 as follows:

32 To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, [page287] the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.

[122] Given the above analysis of the law, I must conclude that the tort of malfeasance of public office or misfeasance in public office has not been made out because there is no basis for a finding of deliberate and unlawful conduct in the exercise of public functions. Had the plaintiff satisfied me of the presence of the essential elements of this tort, I would have found liability for this tort. In other words, I would have found that s. 25 of the Code does not shield the defendants from liability. However, as aforesaid, I have not been satisfied on the evidence that the conduct in which the police officers engaged was deliberate and unlawful.

[123] This then brings us to the tort of intentional infliction of mental suffering. The Ontario Court of Appeal dealt with this tort in Piresferreira v. Ayotte, 2010 ONCA 384. The court held that flagrant and outrageous conduct is a necessary element of the tort as is an intent to cause harm. The evidence does not support a finding that the conduct of the officers was flagrant and outrageous conduct. Accordingly, I reach the same conclusion with respect to this tort as I did with respect to the tort of malfeasance of public office – i.e. had the plaintiff satisfied me of the presence of the essential elements of this tort, I would have found liability under this heading. In other words, I would have found that s. 25 of the Code does not shield the defendants from liability. However, I have not been satisfied on the evidence that the police officers’ conduct was flagrant and outrageous. In addition, the evidence does not establish that the police officers intended to inflict mental suffering on Ms. Olszewski.

[124] The plaintiff, as aforesaid, has also alleged the commission by the police officers of the tort of trespass. Trespass consists of the entry upon the land or another without lawful justification. Trespass is an unjustifiable interference with possession. However, “if police enter premises under a valid search warrant issued in accordance with the provisions of the Criminal Code, they will not commit trespass.” (See G. Fridman, The Law of Torts in Canada, 3^rd ed. (Carswell)).

[125] Among other things, trespass to goods exists where there is improper handling of another’s goods, or where damage is deliberately caused to another’s goods. As aforesaid, the plaintiff has conceded that there is no strict liability on the police officers. Accordingly, the plaintiff must prove that the entry upon her land was unlawful or an unjustifiable inference with her possession and, with respect to chattels, she must also demonstrate that the police officers acted unreasonably in inflicting damage to her chattels, including the pit bulls. The plaintiff has not been able to satisfy me that the evidence warrants conclusions in her favour.

Assessment of General Damages Notwithstanding my Finding of No Liability

[126] By way of general damages, Ms. Olszewski claims an award from $100,000 to $150,000. Ms. Olszewski testified that she harbours continuing feelings of rage, anger, guilt and sorrow, all of which she attributes to the police conduct. She testified further that she is bothered by the flashing lights at her place of work. She attributes this problem to flashing lights on police cars. Strangely, however, there is no or insufficient evidence before the Court of the use of flashing lights by the police during the period in question. She testified that she suffers from itching and that, for a long time, she had trouble eating. She said that there are many things that trigger her memories of these events and she said she had difficulty sleeping and cannot now sleep in her bed. She now sleeps on couches. She complained of bad dreams and nightmares and, in particular, dreams about seeing the dogs at the Humane Society. She also said that she has a tendency to throw up; that people think she is crazy; and that she does not trust anyone anymore.

[127] However, she has not sought any professional medical counselling. Indeed, she has no family doctor. She has taken some trips abroad which she said were helpful.

[128] Two years ago her landlord sold the townhouse and, accordingly, she was required to move out. She said that moving out has caused her to feel like she has deserted her dogs. She testified that her whole life is “goofy” and messed up and that “I’m not going to be okay forever.” She is angry because, in her opinion, the police do not care – “nobody cares.”

[129] In cross-examination she agreed that, notwithstanding her ongoing difficulties, she managed to succeed in completing college courses. Her friend Melissa Caverley testified that the plaintiff is a much changed person following the September 2006 events. She testified that the plaintiff cried nonstop for about three or four days after the events and that after seven months she and the plaintiff began to draw apart. She described the plaintiff as someone who now is not interested in anything – as sad and lonely and very isolated. She said that the pit bulls were like children to her and compared the loss of the dogs to a loss of children.

[130] The plaintiff testified that her viewing of the dead animals at the Humane Society was a traumatic occasion for her. She handled the dogs at that time and her face and hands ended up covered in their blood. She described the occasion as “gross.” I have no doubt that it was.

[131] She keeps an urn with the dogs’ ashes in her bedroom. She also explained that she had a tattoo applied near her ribs in which some of the ashes of the dogs were incorporated.

[132] Ms. Olszewski’s legal counsel referred her to Dr. Ken Reesor, a clinical psychologist, on two occasions for assessments of her psychological status. The first was in July of 2009 and the second was in July of 2011. Dr. Reesor testified at trial. His written assessments of July 23, 2009 and July 15, 2011 were marked as exhibits A and B and were employed by me as aide-mémoires during his testimony. Dr. Reesor opined that her attendance on the dogs at the Humane Society was a very traumatic occasion for her and resulted in very strong reactions on her part. He testified that this traumatic exposure was compounded by her having seen the house with blood smears and splattering throughout. He summarized her psychological and psychiatric reactions, which are still ongoing, as follows:

• Loss of appetite;

• Aversion to ground beef and other meats;

• Intensive images triggered by various stimuli;

• Aversion to red strobe lights at her place of employment;

• An irresistible sense of guilt;

• Sleeping troubles including nightmares;

• Headaches;

• Feelings of panic;

• Shortness of breath;

• Loss of libido;

• Feelings of anger;

• Feelings of helplessness;

• Self-injurious behaviour such as cutting;

• Loss of trust in individuals including medical personnel;

• Dysfunctional preoccupation with the incident; and

• Excessive coffee consumption.

[133] Dr. Reesor testified that all of these symptoms were consistent with her exposure to a traumatic event such as described by her. His diagnosis was Chronic Post-Traumatic Stress Disorder and Chronic Adjustment Disorder with Depressive Features. He observed, however, that his diagnosis was not one of depression. He further observed that, notwithstanding these issues, the plaintiff has been able to maintain her employment. He concluded his first report as follows:

This woman evidences a chronic vulnerability. It has now been seen just under three years following the incidents starting on September 14, 2006. This is a chronic presentation. There are likely to be a variety of normal life circumstances that directly or indirectly will dysfunctionally impact on her (such as seeing emergency lights, dealing with police or emergency personnel, seeing meat, certain dogs, blood, and tear gas like smells) and be disruptive to her functioning. It appears that there have been impacts, for example, on social and interpersonal functioning, with at times negative or inappropriate consequences. Further, there seems to be less investment or attentiveness to her health and well-being. To her credit, she has maintained her work activities. While she does not evidence an impairment precluding capacity to work, the chronic vulnerabilities do constitute a risk factor for episodic problems that can translate into increased sick days and potential threats to maintain occupational performance/responsibilities.

In terms of therapy, she has acknowledged that she has difficulty with trust and it may be challenging for her to engage in and establish a workable therapeutic alliance. Such individuals tend to require somewhat longer term therapy or therapy that may required (sic) intensively intermittently or episodically, depending on the waxing and waning of severities or re-triggering of symptoms. Sometimes pharmacological adjuncts may be helpful in terms of management in controlling symptoms related to sleep and emotional reactions.

[134] Ms. Olszewski does not take any medications other than pain killers from time to time.

[135] In his second assessment Dr. Reesor concluded that the plaintiff was still subject to the same basic adverse reactions and that, in addition, she had a “hate on” for police and problems trusting others. He concluded that the same diagnosis as made in 2009 was warranted. He testified that on both occasions he concluded that she did not have any history of psychiatric/psychological impairments. He concluded his second report as follows:

This woman evidences a chronic vulnerability. This is a chronic presentation. In the previous assessment in 2009, I felt she would be at risk for a variety of normal life circumstances that directly or indirectly would negatively impact on her (such as seeing emergency lights, dealing with police/emergency personnel, seeing meat, certain dogs, blood, and/or exposure to tear gas like smells) and be disruptive to her functioning. It appears that there have been impacts, for example, on social and interpersonal functioning, particularly associated with anger dyscontrol, hostility and aggression. When she was seen in 2009, there seemed to be less investment or attentiveness to her health and well-being but she has demonstrated some improvement in this regard. She has maintained her work activity. While she does not evidence an impairment precluding capacity to work, the chronic vulnerabilities do constitute a risk factor for episodic problems that can translate into increased sick days and potential threats to maintaining occupational performance/responsibilities due to behavioural/emotional functioning.

[136] I have no reason to doubt Dr. Reesor’s diagnosis. I would also observe that no defence medical was requested. However, I am concerned about the lack of mitigation. Notwithstanding that, I appreciate that part of her symptoms involve a distrust of people including medical personnel. This reservation, however, does not prevent her from, at the very least, seeking out medical and other counselling assistance. Indeed, in cross-examination Dr. Reesor in response said, “Is there help – yes – for some but not all of her problems.” He went on to mention therapy and medications as a for instance.

[137] In my opinion, assuming there are no issues of foreseeability or causality, I would assess the plaintiff’s general damages at $50,000. However, because of the plaintiff’s failure to mitigate her PTSD, I would reduce this amount to $33,000.

[138] Not only has the plaintiff not sought out counselling, she has not used any medications that might be helpful.

[139] I turn now to the issue of whether it was reasonably foreseeable that the actions of the police officers would cause harm to the plaintiff. In my opinion, there can be no issue about the foreseeability of the damage to the building and furnishings. Obviously, that was foreseeable. However, was it foreseeable that killing the dogs would cause serious psychological and psychiatric harm to the plaintiff? Given the concerns expressed to the police by the plaintiff prior to the entry into her premises, I must conclude that the police had, or should have had, an expectation that the death of her dogs, especially in such a gruesome fashion, would have a negative impact on her.

[140] The Ontario Court of Appeal dealt with the issue of foreseeability in Mustapha v. Culligan of Canada Ltd, 2006 CanLII 41807 (ON CA), [2006] O.J. No. 4964. Under the heading “The Evolution of Liability for Psychiatric Injury” the court had the following to say:

21 The common law with respect to liability in tort for nervous shock or psychiatric harm has evolved over the past century. Initially, psychiatric injury was considered too remote, and therefore noncompensable, unless accompanied by physical injury or impact inflicted on the plaintiff: see Victorian Railways Commissioners v. Coultas (1888), 13 App. Cas. 222 (P.C.); Toronto Railway Co. v. Toms (1911), 1911 CanLII 3 (SCC), 44 S.C.R. 268; Allen M. Linden, Canadian Tort Law, 7th ed. (Markham: Butterworths, 2001). In the breakthrough decision of Dulieu v. White & Sons, [1901] 2 K.B. 669 (K.B.), damages for nervous shock were awarded for psychiatric injury arising out of an immediate fear of personal injury to the plaintiff, despite the absence of any physical injury or impact on the plaintiff. Subsequently, the law has developed to permit recovery for psychiatric injury caused out of fear for the safety of someone else - usually a spouse, child or a person with a close relationship to the plaintiff - resulting from witnessing an accident or its immediate aftermath: see McLoughlin v. O'Brian, [1983] 1 A.C. 410 (H.L.); Duwyn v. Kaprielian (1978), 1978 CanLII 1271 (ON CA), 22 O.R. (2d) 736 (C.A.); Bechard v. Haliburton Estate (1991), 1991 CanLII 7362 (ON CA), 5 O.R. (3d) 512 (C.A.); Nespolon v. Alford (1998), 1998 CanLII 7127 (ON CA), 40 O.R. (3d) 355 (C.A.), leave to appeal refused [1998] S.C.C.A. No. 452.

[141] Blair J.A. then observed that the common law has divided the types of cases in which damages may be recovered for nervous shock or psychiatric injury into two broad categories “those cases in which the injured plaintiff was involved, either mediately or immediately as a participant and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to another. He then observed that his distinction had not by the year 2006 been adopted in Canada. Blair J. then went on to say:

29 In Ontario - within the context of bystander situations, but without overtly referring to the dichotomy between primary victim and bystander cases - this Court has stated clearly that "reasonable foresight of nervous shock to the plaintiff is the touchstone of liability" for damages for nervous shock: Haliburton Estate, supra, at p. 518. See also Duwyn, supra, at pp. 754-755; Nespolon, supra, at pp. 364-366; and Vanek, supra.

30 In Vanek, supra, at para. 25, MacPherson J.A. accepted this proposition and summarized the general law respecting liability in cases of psychiatric harm in the following fashion:

In Canadian law, a plaintiff can recover for the negligent infliction of psychiatric damage if he or she establishes two propositions - first, that the psychiatric damage suffered was a foreseeable consequence of the negligent conduct; second, that the psychiatric damage was so serious that it resulted in a recognizable psychiatric illness: see Linden, Canadian Tort Law, supra, at pp. 389-92.

31 Foreseeable consequences, however, as noted in Vanek at para. 45, are consequences that the "event and its aftermath might engender in the reasonable person." [Emphasis in original.] At para. 58, MacPherson J.A. adopted the following passage from the speech of Lord Griffiths in White, supra, at pp. 462-463, as "a particularly succinct and useful statement on the foreseeability issue in this type of case":

There is a further requirement in the bystander case and that is that psychiatric injury was reasonably foreseeable as a likely consequence of exposure to the trauma of the accident or its immediate aftermath. The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals. This is not to be confused with the "eggshell skull" situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected. It is a threshold test of breach of duty; before a defendant will be held in breach of duty to a bystander he must have exposed them to a situation in which it is reasonably foreseeable that a person of reasonable robustness and fortitude would be likely to suffer psychiatric injury. [Emphasis added.]

[142] He then went on to state that he would not adopt the distinction between primary victim and secondary victim of bystander cases.

43 Why should it matter in principle? I can see no convincing rationale for concluding that the test for foreseeability in a psychiatric harm case should depend upon the outcome of the exercise of determining whether the plaintiff is a primary or secondary victim. Instead, I prefer the reasoning of the dissenting opinions in Page rejecting the distinction between primary and secondary victims, and concluding that even a plaintiff who was involved in the incident must demonstrate reasonable foreseeability of psychiatric illness in order to recover in tort. Lord Jauncey said at p. 175:

I reject this submission8 for two reasons. In the first place in none of the judgments was it suggested that the need to prove foreseeability of nervous shock was other than a general requirement applicable to all cases where damages therefor were claimed. ... In the second place foreseeability of injury is necessary to determine whether a duty is owed to the victim. Unless such injury can be foreseen the victim is not a neighbour within the celebrated dictum of Lord Atkin in Donoghue v. Stevenson. ...

44 Lord Jauncey also rebuffed the notion that, because a defendant must take the victim as the victim is found, there is no requirement in a primary victim case that the plaintiff be of normal fortitude. At p.178 he observed:

I am satisfied that in determining whether a tortfeasor should have foreseen that either a participant or a bystander would suffer nervous shock as a result of his negligent act the proper test is to assume that the victim is of reasonable fortitude and susceptibility unless, of course, the tortfeasor has special knowledge of the victim's unusual condition.

45 It seems to me that the primary victim/secondary victim distinction is another example of a mechanism constructed and deployed by the courts to put limits, for policy reasons, on the scope of recovery in psychiatric harm cases. This objective is accomplished in other ways in Canada.

[143] He then went on at para. 49 to say:

49 Reasonable foreseeability of harm is the hallmark of tort liability. In my opinion, the test for the existence of a duty of care - and, therefore, for liability - in cases of psychiatric harm is whether it is reasonably foreseeable that a person of normal fortitude or sensibility10 is likely to suffer some type of psychiatric harm as a consequence of the defendant's careless conduct. That is what reasonable foreseeability means. This test, which is the foreseeability test enunciated in Vanek, applies regardless of the distinction between "primary victim" and "secondary victim" cases.

[144] The evidence presented at trial is such that I cannot make an informed decision on whether the psychological or psychiatric injuries about which the plaintiff complains are compensable. Since I have determined that no liability should be imposed on the defendant Board for the actions of the police officers, I decline to make a finding on the issue of causality and foreseeability of the injuries of which the plaintiff complains. I am of the opinion that it would be inappropriate to attempt to determine this issue where there is no liability finding.

The Punitive Damages Claim

[145] I turn now to the issue of punitive damages. The object of punitive damages, of course, is to punish the defendant. It is not compensation for the plaintiff’s loss as such. I have not been persuaded that this is a case in which an award of punitive damages would be justified even if there had been a finding of liability. Punitive damages have been held to be the exception rather than the rule. They are to be awarded only in exceptional cases. This case, in my opinion, is not an exceptional case in the sense intended by the authorities. If there had been a finding of liability due to wrongful conduct, compensation would have been awarded. I can see no justification for a further award.

Assessment of Special Damages Notwithstanding the Finding of No Liability

[146] The plaintiff seeks an award of $4,000 for a diamond ring which she says was lost as a result of the entry. Her evidence was simply that “it disappeared.” I cannot and do not assess any amount for the alleged missing ring. The evidence does not warrant a finding that there was such a loss.

[147] With respect to the remaining $12,000 claim for various expenses it is impossible for me to reach an informed decision on the quantum of the plaintiff’s loss. The burden of proof of damages rests with the plaintiff. She has not met that burden with respect to the claim for either the $4,000 amount or the $12,000. However, it is obvious from the evidence at trial that damage was sustained by the townhouse and its contents. In the result, I assess her claim for the expenses concerning the dogs and the chattels, other than the ring, at $4,000 all in.

Conclusion

[148] This action is dismissed for the aforesaid reasons. No damages are payable notwithstanding my attempts to assess the damages.

Costs

[149] In the event that the parties are unable to reach an agreement with respect to legal costs within 30 days following the release of these Reasons for Decision they may make brief written submissions to me.

Power J.

Released: February 28, 2012

COURT FILE NO.: 06-CV-36754

DATE: 2012/02/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LISA OLSZEWSKI

Plaintiff

– and –

JOHN DOE OFFICER 1, JOHN DOE OFFICER 2, and THE OTTAWA POLICE SERVICES BOARD

Defendants

REASONS FOR DECISION

Power J.

Released: February 28, 2012