KINGSTON COURT FILE NO.: CV-10-00000198-0000

DATE: 20120731

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES LATIMER and MEGAN LATIMER Plaintiffs – and – KINGSTON POLICE SERVICES BOARD (a.k.a. KINGSTON POLICE) and POLICE CONSTABLE G. SMITH Defendants

Jeffery T. Booth, for the Plaintiffs

Kristin Muszynski, for the Defendants

HEARD: June 28, 2012

RULING ON MOTION

QUIGLEY J.

[ 1 ] This a motion brought by the defendants for an Order dismissing the plaintiffs' action pursuant to Rule 20.01(3) of the Rules of Civil Procedure on the basis that there is no genuine issue requiring a trial.

Background

[ 2 ] At approximately 8:05 p.m. on February 13, 2004, on Front Road in Kingston, Ontario, the plaintiff, Megan Latimer, struck and injured a pedestrian Keri Lynn Reasbeck, while operating a motor vehicle owned by her father James Latimer.

[ 3 ] In 2006, Ms. Reasbeck commenced an action against the plaintiffs as a result of this accident.

[ 4 ] On July 11, 2008, the plaintiffs issued a Notice of Action naming the Kingston Police Services Board and Greg Smith, a Kingston City police officer, as defendants.

[ 5 ] In the 2008 action, the plaintiffs claim contribution and indemnity with respect to any amounts for which the plaintiffs may be found liable to Ms. Reasbeck in her 2006 action.

[ 6 ] The plaintiffs allege that because Mr. Smith, an off-duty police officer on the evening of the accident, observed Ms. Reasbeck on two separate occasions while she was walking on King Street and Front Road and failed to take some action, he was, in part, responsible for Ms. Reasbeck's accident. There is no issue about the fact that Mr. Smith was driving his personal vehicle and was driving home after completing his shift at work.

[ 7 ] While travelling westbound on King Street, Mr. Smith observed a pedestrian dressed in dark clothing, who was walking westbound near the middle of the eastbound curb lane, just west of 1060 King Street West. He was travelling at approximately 50 kilometres per hour. He continued to his residence where he picked up his girlfriend.

[ 8 ] A short time later while heading back into downtown Kingston and travelling in the eastbound curb lane on Front Road, Mr. Smith again noticed the same pedestrian walking westbound in the middle of the eastbound curb lane on Front Road. He slowed his vehicle and moved into the left-hand lane so that he could give the individual space to walk. At the same time, Mr. Smith's girlfriend told him to watch out for the pedestrian. Mr. Smith only observed the pedestrian for a brief period of time before performing a shoulder check and moving into the left-hand lane. He had no problem seeing the pedestrian in time to safely move into the left-hand lane.

[ 9 ] Mr. Smith also observed that there were snow banks on either side of Front Road as well as drifting snow on the roadway.

[ 10 ] Upon his return to work the next day, Mr. Smith learned of an accident on Front Road the previous evening. He learned that the accident reconstructionist, Constable Pringle, was looking for witnesses who may have seen Ms. Reasbeck prior to the accident. Mr. Smith provided a statement for the purposes of the accident reconstruction report.

[ 11 ] At the locations where Mr. Smith saw Ms. Reasbeck walking, there were no sidewalks. Mr. Smith frequently observed other pedestrians walking on that roadway, including on the night in question. In an affidavit contained in the Motion Record, Tab 2, paragraph 18, Mr. Smith stated that he was accustomed to seeing walkers, joggers and bikers travelling in the curb lane of the roadway where there were no sidewalks. At such times, he frequently was required to move out of the curb lane to provide these individuals with room to travel safely. He also stated that in winter he observed pedestrians travelling in the middle of the curb lanes due to the build-up of snow banks on the sides of the road. He stated that the mere presence of pedestrians on the road did not cause him to be concerned, as this was a normal occurrence at all times of the year.

[ 12 ] Mr. Smith also stated that he did not have opportunity on either occasion to assess Ms. Reasbeck's capacity, however, there was nothing that caused him concern.

[ 13 ] The Kingston Police asked for community assistance to determine if there were witnesses to this accident. As a result of this inquiry, a citizen, Edward McKay provided a statement to the Kingston Police. He said that on the night in question he was driving eastbound on Front Road in the curb lane. As he got closer to the pedestrian, he could see that the individual was walking westbound in the eastbound curb lane. His first thought when he saw this person was that she appeared drunk, and that she was wearing dark clothing. However, he did not get a good look at the person because he was driving.

[ 14 ] The plaintiffs provided the court with an unsworn statement of Valerie Joan Sober, who also provided a statement to the Kingston Police as a result of their inquiry. Ms. Sober also said that she saw a young woman on the road, walking westbound in the eastbound lane. She said that the snow banks were high at that point on the road. She said that the woman was wearing dark clothing, without any white or reflective portions on it. Ms. Sober said that as she passed the person, she thought it did not look right and the person was going to get hit if she continued walking as she was. Ms. Sober stated that it was totally unfair to other drivers for a person to be walking on the road on a dark night and wearing dark clothing.

[ 15 ] An unsworn statement of Terry Mau was tendered to the court in this motion. Mr. Mau had responded to the Kingston Police inquiry. He observed a person walking with her head up in the air; she appeared to be exhausted. He said the person appeared to be dragging her feet, slouching, and fighting the wind as she walked. Mr. Mau stated she looked spaced out, and it appeared she was not paying attention.

Position of the Defendants

[ 16 ] The defendants' position can be summarized as follows.

[ 17 ] Even if the court finds that an off-duty police officer should be held to a higher standard than a regular citizen in the circumstances, he or she should not be held to the same standard as an on-duty police officer, The appropriate standard of care if he had been on-duty, would be that of a “reasonable officer”. To support that proposition, the defendants are relying on Kasstan v. Toronto Police Services Board 2007 CarswellOnt 5435 at para 9 .

[ 18 ] In any event the defendants submit that Mr. Smith as an off-duty police officer and with his observations, shall be accountable for the same standard of care as a regular citizen. In this regard, the defendants note that the plaintiffs did not sue the McKays and/or the other witnesses who provided more detailed observations of Ms. Reasbeck than did Mr. Smith.

[ 19 ] With respect to the claim against the Kingston Police Services Board, the defendants submit that the Police Services Act provides that a Police Board can only be liable in tort for actions of police officers committed in the course of their employment. Mr. Smith was not in the course of his employment at the time of the accident.

[ 20 ] The defendant, Kingston Police Services Board, further states that there are no Canadian reported cases in which a Police Board has been held liable for the acts or omissions of off-duty police officers. In an English case, Weir v. Chief Mr. of Merseyside Police [2003] E.W.J. No. 340, a Police Board was held liable where an officer was using a police van to help move his girlfriend to a new apartment when he became involved in a dispute with a previous tenant, assaulted him and placed him in the police van. The court in that case held that he was exercising his duty as a constable and in fact he had confirmed his status as a police officer to the tenant.

Position of the Plaintiffs

[ 21 ] The plaintiffs' position is that Greg Smith, a Kingston City Police officer, although off-duty, owed a positive duty to protect Ms. Reasbeck, a member of the public at the time in question, and failed in that duty.

[ 22 ] Section 42.1 of the Police Services Act states that the duties of a police officer include (but are not limited to) preserving the peace and preventing crimes and other offences, and providing assistance and encouragement to other persons in their prevention.

[ 23 ] As authority for that proposition, the plaintiffs rely on the Supreme Court of Canada case R. v. Godoy, 1999 SCC 709, [1998] S.C.J. No. 85 at para 15, in which the court noted that the common law duties of a police officer include the “preservation of peace, the prevention of crime, and the protection of life and property”.

[ 24 ] The plaintiffs in their factum also submit that Mr. Smith had a duty under S. 17 of the Mental Health Act to protect Ms. Reasbeck as a member of the public. That position was not argued before me and in my view has no application to this case.

The Law

[ 25 ] Rule 20.01(3) of the Rules of Civil Procedure provides:

A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[ 26 ] Pursuant to the rule changes effective January 1, 2010, the former test of “no genuine test for trial” in Rule 20.04(2) is changed to “no genuine issue requiring a trial.”

[ 27 ] Specifically, Rule 20.04(2) of the Rules provides:

The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[ 28 ] A judge at a Motion for Summary Judgment now has enhanced authority to weigh evidence, evaluate credibility, draw a reasonable inference from the evidence, and to order oral evidence be presented with or without time limits in certain circumstances.

[ 29 ] In the recent Court of Appeal decision of Combined Air Mechanical v. Flesch 2011 ONCA 764 at paras 72-75, the court summarized the amendments to Rule 20 and set out the classes of cases where summary judgment is appropriate:

[72] We have described three types of cases where summary judgment may be granted. The first is where the parties agree to submit their dispute to resolution by way of summary judgment.

[73] The second class of case is where the claim or defence has no chance of success. As will be illustrated below, at paras. 101-111, a judge may use the powers provided by rules 20.04(2.1) and (2.2) to be satisfied that a claim or defence has no chance of success. The availability of these enhanced powers to determine if a claim or defence has no chance of success will permit more actions to be weeded out through the mechanism of summary judgment. However, before the motion judge decides to weigh evidence, evaluate credibility, or draw reasonable inferences from the evidence, the motion judge must apply the full appreciation test.

[74] The amended rule also now permits the summary disposition of a third type of case, namely, those where the motion judge is satisfied that the issues can be fairly and justly resolved by exercising the powers in rule 20.04(2.1). In deciding whether to exercise these powers, the judge is to assess whether he or she can achieve the full appreciation of the evidence and issues that is required to make dispositive findings on the basis of the motion record – as may be supplemented by oral evidence under rule 20.04(2.2) – or if the attributes and advantages of the trial process require that these powers only be exercised at a trial.

[75] Finally, we observe that it is not necessary for a motion judge to try to categorize the type of case in question. In particular, the latter two classes of cases we described are not to be viewed as discrete compartments. For example, a statement of claim may include a cause of action that the motion judge finds has no chance of success with or without using the powers in rule 20.04(2.1). And the same claim may assert another cause of action that the motion judge is satisfied raises issues that can safely be decided using the rule 20.04(2.1) powers because the full appreciation test is met. The important element of the analysis under the amended Rule 20 is that, before using the powers in rule 20.04(2.1) to weigh evidence, evaluate credibility, and draw reasonable inferences, the motion judge must apply the full appreciation test in order to be satisfied that the interest of justice does not require that these powers be exercised only at a trial.

Analysis and Decision

[ 30 ] In this action, the plaintiffs have produced no authority supporting the proposition that an off-duty police officer has a positive obligation to act in a facts situation similar to this case. Similarly, the plaintiffs have produced no authority to support the proposition that an off-duty police officer should be held to a higher standard of care than that of a regular, reasonable citizen. The other authorities presented by the plaintiffs in their Book of Authorities have no application to the circumstances of this case.

[ 31 ] It is important in this case to understand that Mr. Smith lives in the area of the accident. He regularly sees pedestrians and cyclists using the curb lane, and there was nothing in the actions of Ms. Reasbeck that he observed which would lead him or any reasonable person to believe that she somehow required assistance under the Mental Health Act, or that she was breaking the law. The suggestion by counsel for the plaintiffs that somehow Mr. Smith owed an obligation to do something in the circumstances, defies logic. Ms. Reasbeck had every right to be using that roadway in the manner in which she was using it, since there were no sidewalks and there were high snow banks. It was a dark night with blowing snow, which was entirely reasonable and expected at that time of year and in that location.

[ 32 ] I find the after-the-fact observations of the McKays, Mr. Mau and Ms. Sober, to be very little help to this court. The thing that is clear is that the behaviour of Ms. Reasbeck did not alert Mr. Smith to any potential danger she or any other member of the public might face. Mr. Smith merely observed a pedestrian along with other pedestrians on the very same night on the very same road. I note that the observations of the other witnesses, given that they all stated it was a dark night, provide surprising detail which nevertheless did not cause them enough alarm to either stop or call the police. They only came forward after the Kingston Police sought input from the public.

[ 33 ] Even if a court were to find that Mr. Smith had to observe exactly what the other witnesses saw, the plaintiffs’ case would not be enhanced. Similarly, in those circumstances, Mr. Smith owed no duty of care to Ms. Reasbeck from those observations.

[ 34 ] Liability for negligence requires a breach of duty of care, arising from a reasonably foreseeable risk of harm to a person created by the act or omission of another. I find in these circumstances that Mr. Smith's actions were reasonable, and the fact that Ms. Reasbeck was subsequently struck by a motor vehicle was unfortunate but not predictable. Other pedestrians using the roadway who were observed by Mr. Smith that night did not suffer a similar consequence as Ms. Reasbeck. To expect Mr. Smith to divine that Ms. Reasbeck would be the one pedestrian to be hit is unreasonable.

[ 35 ] At no time did Mr. Smith's observations engage the common law duties of a police officer in the preservation of peace, prevention of crime, and the protection of life and property as outlined in Godoy, supra. Similarly, there is no statutory requirement which would have imposed any such duty in the circumstances of this accident.

[ 36 ] I find further that since Mr. Smith did not breach any duty of care owed to Ms. Reasbeck on the night in question, the Kingston Police Services Board is not vicariously liable to the plaintiffs.

[ 37 ] I find further that on the evening in question, Mr. Smith was not acting in his capacity as a police officer, but even if he were, there was nothing in his observations of Ms. Reasbeck which would have demanded a response by him.

[ 38 ] I find that pursuant to Rule 20.04(2), there is no genuine issue requiring a trial in this case. Accordingly, the plaintiffs' claim against the defendants is dismissed.

Costs

[ 39 ] At the conclusion of the motion hearing, the parties provided costs submissions to the court. The costs are fixed in favour of the defendants in this action in the amount of $31,843.33, inclusive of disbursements and HST, on a partial indemnity scale, payable by the plaintiffs to the defendants forthwith.

MR. JUSTICE MICHAEL J. QUIGLEY

Released: July 31, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JAMES LATIMER and MEGAN LATIMER Plaintiffs – and – KINGSTON POLICE SERVICES BOARD (a.k.a. KINGSTON POLICE) and POLICE CONSTABLE G. SMITH Defendants RULING ON MOTION QUIGLEY J.

Released: July 31, 2012