ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-47481
DATE: 2012/08/30
BETWEEN:
THE ESTATE OF EDWARD KASSIAN, DECEASED, BY ITS ADMINISTRATOR, MICHAEL E. KASSIAN, THE ESTATE OF EILEEN KASSIAN, DECEASED, BY ITS ADMINISTRATOR, MICHAEL E. KASSIAN, MICHAEL E. KASSIAN, KATHLEEN E. KASSIAN AND EVAN M. KASSIAN BY THEIR LITIGATION GUARDIAN, MICHAEL E. KASSIAN, DOUGLAS E. KASSIAN, ALYCIA L. KASSIAN, ANDREW D. KASSIAN AND SYLVIA K. BAYLE
Plaintiffs
– and –
THE ATTORNEY GENERAL OF CANADA, THE AKWESASNE POLICE SERVICES BOARD, THE MOHAWK COUNCIL OF AKWESASNE, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, HER MAJESTY THE QUEEN IN THE RIGHT OF QUEBEC AS REPRESENTED BY THE MINISTER OF PUBLIC SECURITY (THE ATTORNEY GENERAL OF QUÉBEC), THE ESTATE OF DANY GIONET BY ITS LITIGATION ADMINISTRATOR, PETER HAGEN, CONSTABLE MICHAEL BIRON and SERGEANT KENNETH CHAUSSI
Defendants
William J. Sammon, for the Plaintiffs
Michael Ciavaglia/Orlagh O’Kelly, for the Defendant, Attorney General of Canada
Jeremy Glick, for the Defendant, Attorney General for Ontario
Jean Faullem, for the Defendant, Procureur général du Québec
HEARD: June 26 and 27, 2012
REASONS FOR DECISION
MÉTIVIER J.
[1] This matter arises out of a fatal motor vehicle accident on November 14, 2008. It claimed the lives of Edward and Eileen Kassian, both 77 years of age, and that of the driver of the car who struck them, 21 year old Dany Gionet. The accident occurred on Cornwall Island, where Mohawk land straddles the provinces of Ontario and Québec as well as the state of New York.
[2] The island has two main roads which intersect at what is called “Four Corners”, controlled by stop signs on each corner. Canada Customs is located south of the Four Corners intersection while a toll booth is located to the north. The accident occurred in the actual intersection.
[3] The chain of events leading to this tragic result began earlier when Constable King of the Akwesasne Mohawk Police Service (“AMPS”), on secondment to the Royal Canadian Mounted Police (“RCMP”) since 2006, began to follow Mr. Gionet, who was driving a red van. While at Canada Customs, Constable King had noticed the vehicle was down on one axle and he suspected Gionet was smuggling cigarettes. He activated his lights once back in Cornwall. After Mr. Gionet speeded through two stop signs and proceeded through city streets at speeds of up to 80 kilometres per hour, the RCMP supervisor called off the chase as it had become dangerous to the public.
[4] Constable King alerted the Akwesasne police that a red van may be headed back over the bridge to Cornwall Island. Two of the AMPS officers on duty were Constable Michael Biron and Sergeant Kenneth Chaussi.
[5] Constable King then returned to the island, located the vehicle and advised Constable Biron that the red van was now at the toll booth. Constable Biron took up the chase. Mr. Gionet drove through the electric arm of the toll booth and raced away. He reached speeds of 80 to 90 kilometres per hour, as he evaded Constable Biron, at one point narrowly avoiding striking the police vehicle. Mr. Gionet, now clearly driving in a careless and aggressive manner, reached speeds of 160 kilometres per hour.
[6] As supervisor, it was Sergeant Chaussi’s call to terminate the pursuit, although it appears Constable Biron could have done so on his own. Neither did.
[7] Mr. Gionet, according to an accident reconstruction by the Ontario Provincial Police (“OPP”), had blown through the stop sign at 160 kilometres per hour and hit the Kassian vehicle at 130 kilometres per hour.
[8] The plaintiffs bring this action against the Governments of Canada, Québec and Ontario and the Akwesasne Police Services Board, as well as other individuals. Only the three government entities are involved in these motions.
[9] The institutional parties are involved as a result of a formal agreement regarding the provision of police services on the Canadian part of the territory on Akwesasne.
[10] A Quadripartite Policing Agreement (the “Agreement”) sets out the rights and responsibilities of the four government entities named above. The Agreement in effect at the time of the accident had been entered into in 2006.
[11] The Agreement describes the relationship in the following preamble:
WHEREAS the [Mohawk Council of Akwesasne] Council, Canada, Ontario and Québec have agreed to work in partnership and to cooperate in the maintenance of effective, efficient, professional and culturally appropriate policing services at Akwesasne, consistent with the public safety aspirations of the Mohawks of Akwesasne and the principles of policing recognized by Ontario and Québec.
[12] Another preamble sets out that the four parties have agreed to work in partnership and to cooperate in order to maintain effective, efficient, professional and culturally appropriate policing services in Akwesasne. These services are to be carried out in a manner that is consistent with the public safety aspirations of the Mohawk of Akwesasne and the principles of policing recognized by Ontario and Québec.
[13] Among other terms, the Agreement provides that: (1) all salaries are paid for by Canada, Ontario and Québec; (2) in-service and developmental training of Akwesasne police are to be at accredited police training institutes or other institutions accredited or recognized by Canada, Ontario and Québec; (3) all equipment (including police cruisers) used by AMPS is funded pursuant to this Agreement; and (4) AMPS is required to indemnify Canada, Ontario and Québec through the maintenance of a third party liability insurance policy. The three Governments are named as additional insured’s under the policy.
[14] Ontario and Québec’s roles under the Agreement were primarily financial. Each provided 24 per cent of the annual financial contribution set out in the Agreement. That funding was paid to the Mohawk of Akwesasne Council, with Canada contributing 52 per cent. This Council then used these funds for policing purposes.
[15] Associated with that funding, both provinces, and Canada, were entitled to receive:
(1) a yearly audited financial statement accounting for the funds provided by Canada, Ontario and Québec under the Agreement for the previous fiscal year’s operations comprising of a balance sheet, and a statement of revenues and expenditures;
(2) a refund of surplus funds in excess of 8.3 per cent of the annual financial contribution, subject to approval from the others that the Council keep those surplus funds;
(3) access to all financial materials and other records pertaining to the Agreement which were to be kept in Akwesasne and which were to include proper records: invoices, receipts and vouchers related to all expenses;
(4) notice of the receipt by Akwesasne of any other funds which would have an impact on policing services as provided by the Agreement;
(5) access to the management of funds to ensure the consistent application of Canadian generally accepted accounting principles in the maintenance of financial records; and
(6) Canada, Ontario or Québec were permitted to appoint independent auditors to review the records maintained by the Council with respect to the costs of the AMPS, the Akwesasne Mohawk Police Commission (AMPC) and administrative support, again to ensure compliance with the terms and conditions of the Agreement.
[16] Further, the Agreement provides for the ability not only to send in financial auditors but also, with the agreement of all parties, to conduct an operational and administrative evaluation to ensure compliance with the Agreement, including the quality of the policing standards.
[17] Despite provisions permitting such greater involvement, no one from Ontario or Québec ever attended any AMPC meeting, nor did they act as advisors to the AMPC, nor did either province attend liaison committee meetings. Neither province provided any operational instruction to, or had any operational involvement with, the AMPS, except to the extent that the AMPS may have been involved in specific joint policing operations with the OPP or other services during this period.
[18] The Commissioner of the OPP, pursuant to s. 54 of the Police Services Act of Ontario, R.S.O. 1990, c. P.15, is legislated to appoint constables hired by the Mohawk Council. There are requirements that the officers possess a policing diploma from a recognized school. In Ontario, this is described as the Ontario Police College in the Police Services Act, s. 3(3). In Québec, the Police Act, R.S.Q., c. P-13.1, s. 115(4) lists the requirement of holding a diploma from the École nationale de police du Québec.
[19] The provinces also provide training to the AMPS. Elements of this training are required, while others are recommended by the Police Chief of Akwesasne.
[20] An Agreement concerning policing had been entered into in 1990 (the First Agreement). Prior to the First Agreement, Ontario and Québec would have each been 100 per cent responsible for policing the Mohawk Territory within its respective jurisdiction. The First Nations had earlier taken on a more limited role of policing.
[21] After the First Agreement was entered into, the AMPS assumed responsibility for frontline policing of the Canadian territory on Cornwall Island.
[22] The plaintiffs point to an audit conducted in 1991 which referred to numerous serious deficiencies in policing by the AMPS. These deficiencies included inadequate direction, improper investigation procedures and lack of respect towards the public. The audit pointed to failing grades during training courses and the lack of consequences for same. The audit also recommended that AMPS “should be placed under tutelage if it was to be maintained as a police force”.
[23] The defendants state that the 1991 audit was reflective of the particular social and political problems existing at the time, circumstances which are no longer present.
[24] The estate and certain family members of the deceased couple have brought this action seeking damages against the four parties to the Agreement, the estate of Gionet, the two AMPS officers Biron and Chaussi and the Mohawk Council of Akwesasne as well as the Akwesasne Police Services Board.
[25] The plaintiffs state that, as a result of the substandard policing procedures and standards being allowed to continue unchecked, and because of the existence of the Agreement between Canada, Ontario, Québec and the Mohawk Council, the four Governments are vicariously liable for the actions of Constable Biron and Sergeant Chaussi.
[26] There are two motions before this Court at this time:
(1) The first is brought by the Governments of Ontario and Québec for summary judgment on the basis that they cannot be vicariously liable for the actions of two Akwesasne police officers, Constable Biron and Sergeant Chaussi; and
(2) The second is brought by the plaintiffs seeking to amend their Statement of Claim.
SUMMARY JUDGMENT MOTION
[27] Ontario and Québec each bring a motion for summary judgment seeking the dismissal of the within action on the basis that the Statement of Claim reveals no cause of action.
[28] Québec had previously brought a motion seeking a dismissal of the case against it on the basis of Crown immunity. That motion was dismissed in September of 2010 by Maranger J. The court held that the benefit and burden exception applied, as described in Sparling v. Québec (Caisse de dépôt et placement), 1988 26 (SCC), [1988] 2 S.C.R. 1015, 55 D.L.R. (4th) 63. Maranger J. stated that “…Québec entered into an agreement from which they derive the benefit of a cost sharing arrangement for policing services, [and] they must also accept the burden of liability for any wrongdoings of that service”. Further, he found these parties had agreed to work in partnership respecting the policing services.
[29] The plaintiffs allege that Québec’s motion is merely a renewal of its earlier one, and is therefore res judicata.
[30] I disagree with this submission. The motion before Maranger J. dealt with another issue; that of Crown immunity and the jurisdiction to bring a lawsuit against Québec in Ontario. A different issue is the subject of this motion and as such, res judicata, does not apply. See Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 194 D.L.R. (4th) 648, 51 O.R. (3d) 481, at para. 19.
[31] I will address both Québec’s and Ontario’s arguments for summary judgment.
[32] The fundamental question in a summary judgment motion is to inquire whether the facts give rise to the necessity of a trial or whether they reveal no cause of action. The Court of Appeal outlined the need for a full appreciation of the evidence and issues (Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1).
[33] It is submitted by the moving parties that the facts are essentially not contested and that the Agreement between the parties is clear. The facts relating to the accident are known and credibility plays no part in the litigation.
[34] All Governments state they have no operational or day to day control over the AMPS nor do they hire officers.
[35] The two provincial governments submit they played no part in the pursuit giving rise to the accident. This fact is acknowledged.
[36] As a result, Ontario and Québec are of the view that the plaintiffs cannot possibly succeed in their claim of vicarious liability.
(Decision continues exactly as in the source…)
The Honourable Madam Justice M. Métivier
Released: August 30, 2012
COURT FILE NO.: 10-47481
DATE: 2012/08/30
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: THE ESTATE OF EDWARD KASSIAN, DECEASED, BY ITS ADMINISTRATOR, MICHAEL E. KASSIAN, THE ESTATE OF EILEEN KASSIAN, DECEASED, BY ITS ADMINISTRATOR, MICHAEL E. KASSIAN, MICHAEL E. KASSIAN, KATHLEEN E. KASSIAN AND EVAN M. KASSIAN BY THEIR LITIGATION GUARDIAN, MICHAEL E. KASSIAN, DOUGLAS E. KASSIAN, ALYCIA L. KASSIAN, ANDREW D. KASSIAN AND SYLVIA K. BAYLE
Plaintiffs
– and –
THE ATTORNEY GENERAL OF CANADA, THE AKWESASNE POLICE SERVICES BOARD, THE MOHAWK COUNCIL OF AKWESASNE, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, HER MAJESTY THE QUEEN IN THE RIGHT OF QUEBEC AS REPRESENTED BY THE MINISTER OF PUBLIC SECURITY (THE ATTORNEY GENERAL OF QUÉBEC), THE ESTATE OF DANY GIONET BY ITS LITIGATION ADMINISTRATOR, PETER HAGEN, CONSTABLE MICHAEL BIRON and SERGEANT KENNETH CHAUSSI
Defendants
REASONS FOR DECISION
Métivier J.
Released: August 30, 2012