SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-44604
DATE: 2012/01/10

RE: Diane Visneski Foster et. al. , Plaintiffs

AND:

James Prince et. al., Defendants

BEFORE: Master MacLeod

COUNSEL:
Thomas P. Connolly, Counsel for the plaintiffs, moving parties

Sara Blake, Counsel, for the defendants, responding parties

HEARD: October 26, 2011

REASONS FOR DECISION

[ 1 ] This is an action for assault, battery and negligence arising out of the death of Michael Foster who was shot by an O.P.P. officer on April 7 th , 2007. The motion presently before the court is a motion by the plaintiffs for undertakings and refusals arising out of the discovery of the defendants.

[ 2 ] These reasons concern themselves with whether or not the defendants are obliged to answer certain questions put to them by counsel for the plaintiff. The problematic issue was the permissible scope of questioning in connection with allegations of negligence against a police officer. I have concluded that the defendants have taken a position that is far too narrow and restrictive. On the other hand I have declined to order answers that might have been vaguely or generally relevant under the old discovery regime.

[ 3 ] As outlined below, there is now an imperative that discovery be focused, efficient and utilitarian. The court will only order a witness to return to answer further questions if it appears those answers will provide useful responses concerning critical issues that must be proven at trial.

Background

[ 4 ] The basic facts underlying the litigation are not in dispute and are as follows. Michael Foster was 24 years old and suffered from certain behavioural and learning disorders. At the time of his death he was living in Renfrew, Ontario with his mother (the plaintiff Diane Foster) and his half brother (the plaintiff James Leighton). On the day in question Michael was intoxicated and belligerent.

[ 5 ] Following an argument with his mother in the late afternoon, Michael became involved in a physical fight with his brother in the course of which he threatened to go and get a gun. He had returned with an unloaded pellet gun which he subsequently relinquished. Diane Foster had already called 911 when Michael went to the kitchen and grabbed three knives. When the police arrived, Michael had the knives in his hands and both Ms. Foster and Mr. Leighton had left the house.

[ 6 ] According to the police records, the 911 call was received just after 4:23 p.m. The first officer to arrive on the scene was Constable Deanne Campbell. She arrived at 4:31 but she remained with her police cruiser until back up arrived. Constable James Prince arrived moments later and exited his vehicle.

[ 7 ] Apparently Michael advanced towards Constable Prince and threw one of the knives in his direction. The evidence will be that Michael continued to advance towards Constable Prince in a threatening manner and failed to comply with orders to drop the knives and to lie on the ground. Constable Prince drew his service revolver and pointed it at Michael warning him that he would shoot him if he did not drop the knives. He then shot him in the chest.

[ 8 ] The shooting was reported to police dispatch at 4:33 and at 4:49 p.m. Michael was declared dead at the hospital. It appears from the dispatch records that less than three minutes elapsed between the time that the police arrived at the house and the shooting. Constable Prince shot Michael just over a minute after he arrived. In fact the entire incident unfolded in the space of about 45 minutes. Michael Foster was declared dead within 40 minutes of his mother’s call to 911. The question that drives this litigation is whether or not matters should have been handled differently. Was it reasonable to use lethal force?

[ 9 ] Following a police shooting in Ontario there are at least three separate statutory investigations. The Coroner must investigate and decide whether an inquest is necessary. [1] The Special Investigations Unit will normally investigate to determine if criminal charges should be considered. [2] There will be an internal police investigation to determine if disciplinary charges are warranted. [3] In this case all three of these were conducted. The Coroner concluded that Michael died as the result of the bullet discharged from Constable Prince’s service revolver and that no inquest was required. The SIU determined that no criminal charges were warranted. The Professional Standards Bureau of the O.P.P. investigated and found that there was no evidence of misconduct by contravention of policy or procedure. It was concluded that Constable Prince had reason to believe there was risk of death or serious bodily harm to himself or bystanders. Under those circumstances use of his firearm was justified.

[ 10 ] Of course the conclusions by the SIU or the Professional Standards Bureau or the Coroner do not answer the question of civil liability. The SIU investigates to determine if the use of lethal force was apparently justified under s. 25 of the Criminal Code of Canada . The Professional Standard Bureau investigates on behalf of the Commissioner of the O.P.P. to determine if charges should be laid under the Police Services Act leading to disciplinary action against the officer. The Coroner reviews the result of the post-mortem examination and then determines whether or not an inquest is necessary in the public interest under the Coroners Act . These are statutory tests for statutory purposes.

[ 11 ] Civil liability is determined under the ordinary law of tort. In the case of the Ontario Provincial Police, Her Majesty the Queen in Right of Ontario is deemed to be the employer of each police officer and is vicariously liable for torts committed by members of the O.P.P. Besides a claim for assault and battery, the statement of claim asserts that Michael’s death was caused by the negligence of the defendants. In particular the claim alleges that the officers were negligent in failing to recognize that Michael was intoxicated and suffering from a mental disorder; decided to subdue Michael when other options were available; failed to consider non lethal options to subdue Michael; failed to request reinforcements; and, failed to employ a skilled and qualified negotiator with a view to a peaceful resolution of the situation.

[ 12 ] Liability in negligence hinges on the existence of a duty of care, conduct that falls below the standard of care and causation of damage. Neither duty of care nor causation are seriously in issue in this case. The central question will be whether or not the police officers took reasonable care in the circumstances. This will require the judge to determine whether there were other alternatives that a properly trained police officer should have considered. This breaks down into at least three questions. Were there alternative courses of action available? Should the officers have considered those alternatives? Was it reasonable to use lethal force? Only against the answer to the first two questions can the third be answered. This is the heart of the litigation.

The issues for decision

[ 13 ] Three witnesses were examined for discovery. These were Constable Prince, Constable Carter (formerly Campbell) and Detective Staff Sergeant Abrams who was produced on behalf of the O.P.P.

[ 14 ] It should be noted that there had been two other motions pending: to amend the statement of claim and to dismiss the action against certain of the original defendants. These motions were resolved on a consensual basis and I made an order permitting amendment of the claim and deletion of certain parties in the title of the proceedings. Consequently the pleading for purposes of this motion is the “Amended Amended Statement of Claim” naming only James Prince, Constable Deanne Campbell and Her Majesty the Queen as defendants. An amended defence will be forthcoming but it will essentially be the existing defence deleting references to the other defendants who are no longer in the action.

[ 15 ] Subsequent to hearing oral argument, the Court of Appeal released its reasons in Schaeffer v. Wood [4] . That is a decision dealing with the propriety of having counsel for a police officer review draft notes before the officer enters his or her formal notes in the official police notebook. It is a decision relevant to certain of the questions in dispute and accordingly counsel made written submissions.

[ 16 ] The questions in issue may be grouped into broad categories. Firstly there are questions relating to the education and training of the officer defendants. Secondly there are questions relating to production of documents over which some form of privilege is claimed. Thirdly there are questions about personal background and finally there are questions relating to people Constable Prince spoke to post incident. I have approached this by discussing general principles and then making specific rulings on the specific questions.

(Decision text continues exactly as in the source.)

Master MacLeod

Date: January 10, 2012

[1] Coroners Act R.S.O. 1990, c. C.37 (as amended) in particular ss. 10 , 15 & 18

[2] Police Services Act, R.S.O. 1990, c. P.15 (as amended), s. 113 (5)

[3] Police Services Act, R.S.O. 1990, c. P.15 (as amended), s. 80 (formerly s. 74 )

[4] 2011 ONCA 716 ; [2011] O.J. No. 5033 (C.A.)

[5] See for example Barbiero v. Elmbrook Cosmetic Centre Inc. [2005] O.J. No. 3683 (S.C.J.) as well as para. 18 of the costs award in Camaso Estate v. Egan 2011 BCSC 954 (B.C.S.C.) referred to by the plaintiffs.

[6] See Senechal v. Muskoka 2005 , [2005] O.J. No. 1406 (Master)

[7] Rule 31.06 (1).

[8] Rules 29.01.03 & 31.05.1

[9] Rule 29.2

[10] Schaeffer , supra @ para. 78

[11] ibid, @ para 73 - 74

[12] Schaeffer , supra @ para. 74