COURT FILE NO.: CV-11-439127
DATE: 20130919
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN: KOFI PATRONG, ROSE PATRONG, Plaintiffs
AND:
WAYNE BANKS, AL COMEAU, JULIAN FANTINO,
TORONTO POLICE SERVICES BOARD, Defendants
BEFORE: CHIAPPETTA J.
COUNSEL:
Barry Swadron & Karen Steward, for the Plaintiffs
Kevin McGivney & David Elman, for the Defendants
HEARD: August 14 and 21, 2013
ENDORSEMENT
Overview
[1] This motion considers whether, in the circumstances of the applicable pleading, the police owe a private law duty of care to an individual victim of crime. The duty may exist if there is a special relationship of proximity between the police and the individual sufficient to distinguish the individual from other members of the public. I have concluded that the pleadings herein failed to establish the requisite special relationship. It is plain and obvious that the plaintiffs’ negligence claim cannot succeed.
Background
[2] The plaintiff, Kofi Patrong (“Patrong”), was a victim of a drive-by shooting in the Malvern area of Scarborough, Ontario (“Malvern”) on April 19, 2004. Patrong is an African American male who was 19 years old at the time of the shooting. He is a recent high school graduate with no criminal record or any association with a gang or criminal organization. The shooting occurred as Patrong stood with a friend in the backyard of a Malvern townhouse complex, where he lived. Tyshan Riley (“Riley”) was the shooter and a stranger to Patrong at the time. Riley was convicted for the crime.
[3] Patrong commenced an action against the defendants by way of Statement of Claim dated November 9, 2011. Patrong submits three causes of action: (i) police negligence for failure to take reasonable care to guard against foreseeable harm, (ii) breach of s. 7 of the Canadian Charter of Rights and Freedoms, and (iii) misfeasance in public office. The plaintiff, Rose Patrong, is Patrong’s mother and brings a derivative action under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3.
[4] On October 17, 2012, the plaintiffs amended their Statement of Claim pursuant to Rule 26.02(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The plaintiffs rely on facts as pleaded in the Fresh as Amended Statement of Claim and the July 17, 2013 Reply to Demand for Particulars (collectively “the Claim”).
[5] The plaintiffs argue that the defendants owed a private law duty of care to Patrong. Significant harm to Patrong was foreseeable. Leading up to the shooting, police had extensive information and surveillance respecting Riley’s dangerousness and his intention to drive into Malvern to shoot at young black males whom he perceived to be Malvern Crew members. There was a special relationship of proximity between the defendants and Patrong, as Patrong was part of a narrow and identifiable group of Riley’s potential victims. The defendants knew or ought to have known that Riley posed a great threat to young black men’s safety in Malvern, including Patrong.
[6] The plaintiffs further submit that the defendants failed to fulfill their private law duty of care to Patrong. The defendants failed to take reasonable care to guard against the foreseeable and preventable harm to Patrong.
[7] The defendant, the Toronto Police Services Board (“TPSB”), is a municipal services board constituted under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”). Section 50(1) of the PSA provides that the TPSB is liable for torts committed by Toronto Police Service (“TPS”) members in the course of employment. The defendants, former Chief Julian Fantino, Detective Sergeant Al Comeau, and Detective Wayne Banks, were TPS members at all material times.
[8] The defendants bring this motion for an order striking the Claim in its entirety without leave to amend, pursuant to Rules 21.01(b) and 21.01(2)(b) of the Rules of Civil Procedure. The defendants argue it is plain and obvious that they owed no actionable private law duty of care to the plaintiffs at any time prior to the shooting on April 19, 2004. Further, they submit that the pleading does not support a cause of action under s. 7 of the Charter or for public misfeasance.
Issues To Be Determined
[9] The key issue is whether it is plain and obvious that the Claim discloses no reasonable cause of action or has no reasonable prospect of success, reading the Claim generously to accommodate inadequacies in the allegations due to drafting and taking the material facts as pleaded to be proved. To answer this question, the court must address the following sub-issues:
What is the test for striking out the Claim?
Does the Claim support a legal cause of action in negligence?
Does the Claim support a legal cause of action under s. 7 of the Charter?
Does the Claim support a legal cause of action in public misfeasance?
Analysis
1. What is the test for striking out the Claim?
[10] A claim will be struck where, assuming the facts pleaded are true (unless the facts were speculative or incapable of proof), it is “plain and obvious” that the pleading discloses no reasonable cause of action, meaning it has no reasonable prospect of success: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17.
2. Does the Claim support a legal cause of action in negligence?
[11] Liability in negligence is predicated on the plaintiffs demonstrating that the defendants owed Patrong a private law duty of care. Considering the test applicable on a motion to strike a claim, the question for the court is whether, on the facts as alleged, the defendants have demonstrated that Patrong does not have a reasonable prospect of establishing that the defendants owed him a private law duty of care. If the question gives rise to genuine legal or factual uncertainties, it cannot be answered at this stage and the answer must await a trial and a complete record: Taylor v. Canada (A.G.), 2012 ONCA 479, 111 O.R. (3d) 161, at para. 22.
[12] The Cooper-Anns test to determine whether a duty of care exists is derived from the House of Lords in Anns v. Merton London Borough Counsel, [1978] A.C. 728 (U.K.) and refined by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537. The Supreme Court summarizes the two-stage Cooper-Anns test as follows:
At the first stage, the question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. The proximity analysis focuses on factors arising from the relationship between the plaintiff and the defendant, including broad considerations of policy. The starting point for the proximity analysis is to determine whether there are analogous categories of cases in which proximity has previously been identified. If no such cases exist, the question then becomes whether a new duty of care should be recognized in the circumstances. In order to recognize a new duty of care, mere foreseeability is not enough. The plaintiff must show proximity – that the defendant was in a close and direct relationship to him or her such that it is just to impose a duty of care in the circumstances. The factors which may satisfy the requirement of proximity are diverse and depend on the circumstances of the case. They must be grounded in the governing statute when there is one.
If the plaintiff is successful in establishing a prima facie duty of care, the question at the second stage is whether there exist residual policy considerations which justify denying liability. These are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. The second stage of Anns will seldom arise, as questions of liability will be determined primarily by reference to established and analogous categories of recovery. Where a duty of care in a novel situation is alleged, it is necessary to consider the second stage of the Anns test.
[13] The full two-stage analysis is not required where the claim advanced describes a relationship that is the same or analogous to a relationship that courts have previously recognized or rejected as giving rise to a prima facie duty of care: Taylor, at para. 73.
[14] The plaintiffs submit that the private law duty of care, as pleaded, was previously recognized in Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 1990 6611 (ON SC), 74 O.R. (2d) 225 (Div. Ct.), aff’g (1989), 1989 5300 (ON SC), 58 D.L.R. (4th) 396 (H. Ct. J.); see also Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 1998 14826 (ON SC), 39 O.R. (3d) 487 (Gen. Div.).
[15] In Doe, an intruder raped the plaintiff in her apartment. Police arrested the attacker several months later. He ultimately pleaded guilty to a number of sexual assaults. These included the attack upon Jane Doe and prior similar assaults upon several other women. All of the prior attacks occurred within a one-year period near Church Street and Wellesley Street, Toronto. They involved white, single women living in second-floor or third-floor apartments with a balcony. Jane Doe commenced a civil action against the Chief of the TPS at that time, the TPSB, and the investigating officers in charge of the case. She raised two causes of action: (i) negligence in failing to warn and (ii) violation of her right to security of the person and her right to equal protection of the law under ss. 7 and 15(1) of the Charter respectively.
[16] The defendants sought to strike Jane Doe’s claim in its entirety as disclosing no reasonable cause of action. With respect to the negligence claim, they argued that the discretion vested in them by the PSA precluded a civil action in negligence.
[17] In Doe (1990), Moldaver J. for the Divisional Court concluded that the facts as pleaded by Jane Doe demonstrated that the police had the requisite knowledge to establish a private law duty of care. The harm was foreseeable and a special relationship of proximity existed.
[18] Jane Doe alleged that the defendants knew of the existence of a serial rapist. It was imminently foreseeable that he would strike again and cause harm to another victim. The allegations, therefore, supported foreseeability of harm.
[19] Jane Doe further alleged that by the time she was raped the defendants knew or ought to have known that she was one of a narrow and distinct group of potential victims, sufficient to support a special relationship of proximity.
[20] In this case, the plaintiffs submit that the Claim “falls under the umbrella” of Doe. The relationship between Patrong and the defendants is analogous to the previously recognized relationship of proximity in Doe.
[21] The plaintiffs plead that the defendants knew or ought to have known that Riley intended to continue to enter Malvern in a vehicle to shoot young black males whom he perceived to be Malvern Crew members (paras. 3, 9, 10, 12, 13, 14, 15, 17, 31, and 33 of the Claim). Therefore, the allegations support foreseeability of harm. I agree, and the defendants take no issue with respect to foreseeability.
[22] The plaintiffs further submit that, as in Doe, their pleadings support a special relationship of proximity between the police and Patrong (paras. 3, 9, 12, 13, 14, 16, 17, 18, 19, 29, 37, and 39 of the Claim). They argue that the police knew or ought to have known that there was a specific threat or risk to a distinct and narrow group to which Patrong belonged: young black males residing in Malvern perceived by Riley to be Malvern Crew members.
[23] Accordingly, the plaintiffs argue that, on the facts pleaded, they have established a prima facie duty of care analogous to the duty of care recognized in Doe. They also cite Haggerty Estate v. Rogers, 2011 ONSC 5312, 208 A.C.W.S. (3d) 252 for support. They submit that it would defy logic to find a duty of care in Doe but not this case, considering that both sexual assaults and shootings are serious offences, the attacks were expected and did occur in designated locations using certain modus operandi, and the attacks were perpetrated against a small class of identifiable individuals.
[24] I disagree. Doe establishes that the police may owe a duty of care to a crime victim if the facts as pleaded establish a special relationship of proximity between the police and the victim. However, the Claim herein read generously does not support that the defendants had the requisite knowledge of Patrong prior to the shooting sufficient to establish a special relationship of proximity between the police and Patrong analogous to the relationship in Doe.
[25] In Doe (1990), Moldaver J., accepting the facts as pleaded in Doe (1989), held that the police had the requisite knowledge to establish a private law duty of care. The requisite knowledge pleaded in Doe (1989) included the following at p. 400:
(i) The defendants identified the apartments that the serial rapist would likely target, namely second and third floor apartments with balcony access occupied by single women in the Church-Wellesley area.
(ii) The plaintiff was readily identifiable by the defendants as a likely target of the serial rapist because of her distinguishing characteristics, including the fact that she was a white, single woman residing in a second or third floor apartment with a balcony in the Church-Wellesley area.
(iii) Although the defendants identified the plaintiff as a likely target, they specifically decided not to warn her because they believed it would cause hysteria among the women and would alert the suspect to flee and not engage in further criminal activity.
(iv) The defendants admitted that they should have issued a warning in the circumstances.
[26] The Claim demonstrates that Patrong was a member of the public who could be at risk of foreseeable harm by Riley. The police knew that Riley was a Galloway Boyz member and that one of that gang’s rivals was the Malvern Crew, a criminal organization of young black males in the Malvern area. The police knew or ought to have known that a gang war was in progress between the Galloway Boyz and the Malvern Crew and that there was a gun violence epidemic in Malvern related to this “gang war” for almost four months prior to the shooting. Therefore, the pleadings demonstrate that the defendants had knowledge and concern of Riley as a threat. All Malvern residents were at risk of foreseeable harm, including young black males who may be perceived by Riley to be a member of the Malvern Crew.
[27] By contrast, in Doe, the pleadings demonstrated that the police knew of Jane Doe as a specific and identified likely target. All Church-Wellesley area residents were not at risk; all single white females of the area were not at risk; all single white females living in apartment buildings in the area were not at risk. Rather, potential victims were intentionally narrowed to single, white females who lived on designated apartment building floors with balcony access in the Church-Wellesley area. Prior to the attack, Jane Doe was readily known to the police as a member of a specific class of potential victims. The knowledge of potential victims was very narrow and so distinct. Jane Doe claimed the police made a conscious decision to sacrifice her and use her as “bait” to apprehend the suspect: Doe (1990), at p. 231.
[28] The facts as pleaded in the Claim do not support that Patrong was readily known to the police as a target of the foreseeable harm. The Claim lacks details of a direct relationship between Patrong and the defendants.
[29] The Claim describes an epidemic of gun violence in the Malvern area related to a gang war. At para. 23 of the original Statement of Claim, the plaintiffs pleaded that the shooting on April 12, 2004 was “into a townhouse where an innocent woman and her children resided.” The plaintiffs continue to rely on the April 12, 2004 shooting in the Claim, but they no longer refer to the potential victims: para. 29.
[30] The plaintiffs allege that the defendants knew or ought to have known that Riley committed a series of drive-by shootings in the Malvern area between December 29, 2003 and March 31, 2004. He killed or wounded at least five young black males: two Malvern Crew members and three young black males perceived by Riley to be Malvern Crew members.
[31] The plaintiffs further particularize the location of the four drive-by shootings describing one on a sidewalk, one on a driveway, and two in the street. The plaintiffs state therefore that Patrong was a member of a narrow and distinct group of potential victims: young black males in the Malvern area perceived by Riley to be Malvern Crew members.
[32] The relationship between the police and Patrong is not analogous to the relationship between the police and Jane Doe. The Claim does not demonstrate that the police knew of a pattern of prior criminal offences as consistent and defined as that in Doe. The Claim does not show that the police specifically knew Patrong was a member of a limited number of obvious victims and used him as “bait” for Riley’s apprehension, as the police did in Doe. Rather, the facts pleaded demonstrate that Patrong was a member of a vast group of unidentifiable foreseeable victims. Riley’s subjective perceptions determined the victims’ identities within that vast group. The police could not know who Riley would or would not perceive to be a Malvern Crew member or how Riley would make such an assessment.
[33] The defendants submit that the courts have already excluded the duty of care alleged by the plaintiffs. They argue that the Claim cannot be distinguished from the factual pleadings in Project 360 Investments Ltd. (c.o.b. Sound Emporium Nightclub) v. Toronto Police Services Board, 2009 36380 (ON SC), [2009] O.J. No. 2473 (S.C.).
[34] In Project 360, a person named McCalla shot a patron in a nightclub in the early morning hours of October 6, 2002. The plaintiffs were the nightclub owners. They claimed damages against the police for loss of business income in the aftermath of the shooting. According to the pleading, police knew of McCalla as a gang member involved in robberies and firearm trafficking with a history of violent behavior. The plaintiffs alleged that the police learned on October 5, 2002 that McCalla intended to go to their nightclub with a firearm that night, but failed to prevent his entry into the nightclub and failed to warn them.
[35] The police sought to strike portions of the plaintiffs’ claim that alleged McCalla could have been arrested prior to October 5, 2002 but for a negligent police investigation. MacDonnell J. found that sufficient proximity was not established in relation to those claims, stating the following at para. 28:
As I suggested earlier, the focus of the Chief Justice in Hill v. Hamilton-Wentworth Police Service Board and of Henry J., Moldaver J., and MacFarland J. in Jane Doe, on the specific aspects of the plaintiffs’ situation vis à vis the police that distinguished them from other members of the public would not have been necessary if there were a general private law duty of care owed by the police to individual members of the public. Accordingly, in order for the plaintiffs to maintain an action in negligence against the police for their failure to arrest McCalla prior to October 5, 2002, they must plead facts on the basis of which it could be found that a special relationship of proximity existed prior to October 5, 2002. The Statement of Claim contains no facts of that nature. The plaintiffs have not pleaded that prior to October 5, 2002, the police had any knowledge that McCalla had any link whatsoever to the plaintiffs or their nightclub, that he had ever been there, or that he ever intended to go there. Further, the plaintiffs have not pleaded that the police had any relationship with them prior to October 5. Based on the facts pleaded in the Statement of Claim, prior to October 5 the plaintiffs were in the same position vis à vis the police as every other member of the public.
[36] MacDonnell J.’s comments do not exclude the duty of care asserted by the plaintiffs. MacDonnell J. cites jurisprudence establishing that the police owe a general duty of care to the public at large, but not a private law duty of care. However, the police may owe a private law duty of care to a specific member of the public when there is a special relationship of proximity. This was later confirmed by the Ontario Court of Appeal in Wellington v. Ontario, 2011 ONCA 274, 105 O.R. (3d) 81, at paras. 29-34. Thus, Project 360 shows that a victim of an identifiable threat can maintain a negligence action against the police if the pleadings support a special relationship of proximity. The facts as pleaded were not sufficient to establish a proximity relationship in that particular case.
[37] In Taylor, the Ontario Court of Appeal recently considered what is required in a pleading to establish sufficient proximity between a plaintiff and a defendant government body in a regulatory negligence claim. Doherty J.A. writes the following at para. 66:
The proximity requirement cannot be reduced to a list of factors or circumstances which, if they exist, will always create a relationship of proximity between a plaintiff and a defendant. Proximity is a concept, not a test: see Canadian National Railway Co. v. Norsk Pacific Steamship Co., 1992 105 (SCC), [1992] 1 S.C.R. 1021, [1992] S.C.J. No. 40, at p. 1151 S.C.R. The concept of proximity describes a relationship between a plaintiff and a defendant that is sufficiently close and direct to render it fair and reasonable to require that the defendant, in the conduct of its affairs, be mindful of the plaintiff’s legitimate interests: see Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 2001 SCC 79, at paras. 32-36.
[38] When a claim is advanced against a public authority exercising statutory powers, the proximity analysis must focus first on the applicable legislative scheme and second on the interactions, if any, between the public authority and the plaintiff: Taylor, at para. 75. Where the legislative scheme expressly or implicitly forecloses or imposes a private law duty of care, the analysis is concluded and it is not for the court to contradict the legislation: Taylor, at para. 77. Where the legislative scheme is not determinative, it nonetheless shapes the relationship between the public authority and the plaintiff and remains relevant in deciding whether the specific interactions between them are sufficient to create the degree of proximity required to establish a prima facie duty of care: Taylor, at para. 79.
[39] As noted above, the police may owe a private law duty of care to the victim of a crime in cases where there is a sufficient relationship of proximity between the police and the victim. The Claim in this case is not analogous to that in Doe. In my view, a review of the legislative scheme is appropriate to assess whether the relationship between Patrong and the defendants, although not as direct as the relationship in Doe, is nonetheless sufficient to create the degree of proximity necessary for a prima facie duty of care.
[40] The defendants derive their duties and powers from the PSA. [Section 1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p15/latest/rso-1