The Estate of Kassian, deceased, by its Administrator Kassian, et al. v. The Attorney General of Canada et al.

[Indexed as: Kassian Estate v. Canada (Attorney General)]

Ontario Reports

Ontario Superior Court of Justice,

Beaudoin J.

February 14, 2013

114 O.R. (3d) 617 | 2013 ONSC 892

Case Summary

Negligence — Duty of care — Plaintiffs bringing negligence action arising out of high-speed chase by officers of Akwesasne Police Service — Motion judge granting plaintiffs' motion to amend statement of claim to allege that Ontario, Quebec and Canada were directly negligent for failure to implement recommendation following operational audit which raised issues with police service — Defendants granted leave to appeal — Motion judge's decision conflicting with other decisions on existence of private law duty of care — Doubt existing as to correctness of decision — Proposed appeal raising important issues that warranted clarification and resolution by higher level of judicial authority.

Negligence — Vicarious liability — Plaintiffs alleging that Ontario and Quebec were vicariously liable for torts allegedly committed by members of Akwesasne Police Service — Motion judge dismissing provinces' motion for summary judgment on grounds that determination of vicarious liability required full evidentiary record and that it was not plain and obvious that claim could not succeed — Provinces granted leave to appeal that decision — Motion judge applying test for motion to strike claim instead of test for summary judgment, failing to refer to evidence and admissions relied on by provinces and taking irrelevant issues into account in concluding that full evidentiary record was required — Motion judge's decision having profound implications for defendants and other provinces that had entered into policing agreements with First Nations communities.

The plaintiffs brought an action arising out of a fatal collision following a high-speed chase by officers of the Akwesasne Police Service. They alleged that Ontario and Quebec were employers of the Akwesasne Police Service officers and the owners of one of the police cruisers and were therefore vicariously liable for the officers' torts. Ontario and Quebec brought a motion for summary judgment dismissing the action against them. The motion judge dismissed the motion, holding that the determination of vicarious liability required a full evidentiary record and that it was not plain and obvious that the claim could not succeed. Ontario and Quebec moved for leave to appeal that decision. On a motion by the plaintiffs, the motion judge permitted them to amend their pleadings to allege that Ontario, Canada and Quebec were directly negligent for an alleged failure to implement recommendations following an operational audit in 1991 which raised issues with the Akwesasne Police Service. Ontario, Quebec and Canada moved for leave to appeal that decision.

Held, leave to appeal should be granted.

By citing the "plain and obvious" test, the motion judge apparently applied the test for a motion to strike a claim instead of the test for summary judgment. Her review of the evidentiary record was problematic. She failed to refer to the evidence and admissions relied on by Ontario and Quebec, deferred to further evidence that could be available at trial, and took irrelevant issues into account in concluding that a full evidentiary record was required. The decision on the [page618] summary judgment motion appeared to be in conflict with existing case law that requires the responding party to put its best foot forward, and there was reason to doubt the correctness of the decision. The decision would have profound implications to Ontario, Quebec and other provinces that have entered into policing agreements with First Nations communities.

The decision granting leave to the plaintiffs to amend their pleadings conflicted with other decisions on the existence of a private law duty of care. There was reason to doubt the correctness of the decision. The proposed appeal raised important issues that warranted clarification and resolution by a higher level of judicial authority.

Cases referred to

Canada (Attorney General) v. Lameman, [2008] 1 S.C.R. 372, [2008] S.C.J. No. 14, 2008 SCC 14, 292 D.L.R. (4th) 49, [2008] 2 C.N.L.R. 295, 86 Alta. L.R. (4th) 1, 164 A.C.W.S. (3d) 873, J.E. 2008-689, EYB 2008-131651, 372 N.R. 239, [2008] 5 W.W.R. 195, 429 A.R. 26, 68 R.P.R. (4th) 59; Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1, [2011] O.J. No. 5431, 2011 ONCA 764, 286 O.A.C. 3, 97 C.C.E.L. (3d) 25, 14 C.P.C. (7th) 242, 13 R.P.R. (5th) 167, 211 A.C.W.S. (3d) 845, 93 B.L.R. (4th) 1, 10 C.L.R. (4th) 17; Marks v. Ottawa (City), [2011] O.J. No. 1445, 2011 ONCA 248, 280 O.A.C. 251, 81 M.P.L.R. (4th) 161; McLean v. Toronto (City) Police Service, [2001] O.J. No. 2882, [2001] O.T.C. 551, 106 A.C.W.S. (3d) 647 (S.C.J.); Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, 2003 SCC 69, 233 D.L.R. (4th) 193, 312 N.R. 305, J.E. 2004-47, 180 O.A.C. 201, 11 Admin. L.R. (4th) 45, 19 C.C.L.T. (3d) 163, 127 A.C.W.S. (3d) 178, consd

Other cases referred to

Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492, [1977] 2 W.L.R. 1024, 75 L.G.R. 555, 141 J.P. 527, 5 Build. L.R. 1, 4 I.L.R. 21, 243 E.G. 523, [1977] E.G.D. 604 (H.L.); B. (K.L.) v. British Columbia, [2003] 2 S.C.R. 403, [2003] S.C.J. No. 51, 2003 SCC 51, 230 D.L.R. (4th) 513, 309 N.R. 306, [2003] 11 W.W.R. 203, J.E. 2003-1874, 187 B.C.A.C. 42, 18 B.C.L.R. (4th) 1, [2003] R.R.A. 1065, 19 C.C.L.T. (3d) 66, [2004] CLLC Â210-014, 38 C.P.C. (5th) 199, 44 R.F.L. (5th) 245, 125 A.C.W.S. (3d) 432; Brownhall v. Canada (Minister of National Defence) (2006), 2006 7505 (ON SC), 80 O.R. (3d) 91, [2006] O.J. No. 672, 146 A.C.W.S. (3d) 10 (S.C.J.); Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542, [1992] O.J. No. 652, 55 O.A.C. 316, 6 C.P.C. (3d) 271, 32 A.C.W.S. (3d) 1026 (Div. Ct.); Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 2001 SCC 79, 206 D.L.R. (4th) 193, 277 N.R. 113, [2002] 1 W.W.R. 221, J.E. 2001-2153, 160 B.C.A.C. 268, 96 B.C.L.R. (3d) 36, 8 C.C.L.T. (3d) 26, 110 A.C.W.S. (3d) 943; Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110, [1988] O.J. No. 525, 30 O.A.C. 53, 28 C.P.C. (2d) 294, 10 A.C.W.S. (3d) 13 (Div. Ct.); Kassian Estate v. Canada (Attorney General), [2012] O.J. No. 4098, 2012 ONSC 4951 (S.C.J.); MacGregor v. Royal and Sun Alliance Insurance Co. of Canada, [2009] O.J. No. 3573, 180 A.C.W.S. (3d) 380 (S.C.J.); R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42, 308 B.C.A.C. 1, 419 N.R. 1, 2011EXP-2380, J.E. 2011-1326, 335 D.L.R. (4th) 513, 205 A.C.W.S. (3d) 92, 21 B.C.L.R. (5th) 215, 25 Admin. L.R. (5th) 1, 86 C.C.L.T. (3d) 1, [2011] 11 W.W.R. 215, 83 C.B.R. (5th) 169; Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569, [1986] O.J. No. 2380, 13 C.P.C. (2d) 192, 2 A.C.W.S. (3d) 104 (H.C.J.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423, [1996] O.J. No. 1568, 2 O.T.C. 146, 62 A.C.W.S. (3d) 891 (Gen. Div.); Troy Bogner v. Joseph Tomei, 2012 ONSC 3939 (S.C.J.) [Leave to appeal the order granted August 8, 2012] [page619]

Statutes referred to

Police Services Act, R.S.O. 1990, c. P.15, ss. 1, 3 [as am.], (2) [as am.], 54

Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 2, (2)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21, 26.01, 62.02, (4)

MOTION for leave to appeal.

William J. Sammon, for plaintiffs.

Orlagh O'Kelly, for defendant Attorney General of Canada.

Jeremy Glick and Kim Twohig, for defendant Attorney General for Ontario.

Jean Faullem, for defendant Procureur général du Québec.

BEAUDOIN J.: —

Overview

1Her Majesty the Queen in Right of Ontario ("Ontario") and the Procureur général du Québec ("Quebec") bring this motion pursuant to rule 62.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 seeking leave to appeal the decision of the Honourable Justice M. Métivier dated August 30, 2012 [ [2012] O.J. No. 4098, 2012 ONSC 4951 (S.C.J.)], dismissing Ontario and Quebec's summary judgment motions and granting (in part) the plaintiffs' motion to further amend their pleadings. The Attorney General of Canada ("Canada") joins in seeking leave to appeal that part of the decision allowing the amendments.

Background

2The plaintiffs' action arises from the deaths of Edward and Eileen Kassian in a collision following a high-speed vehicle chase by officers of the Akwesasne Police Service on November 14, 2008. The driver of the vehicle being pursued by the Akwesasne Police, Dany Gionet, was also killed in the collision.

3The plaintiffs allege that the two Akwesasne Police Service officers involved in the suspect apprehension pursuit of Dany Gionet were negligent. The plaintiffs allege that Ontario, Canada, Quebec and the Mohawk Council of Akwesasne are "jointly and severally responsible for the operation" of the Akwesasne Mohawk Police Commission ("Akwesasne Police Service Board") and the hiring and training of its police officers. The plaintiffs further allege that Canada, Ontario and Quebec are employers of the Akwesasne Police Service officers and the owners of one of the police cruisers and are therefore vicariously [page620] liable for their torts. The vicarious liability of Ontario and Quebec was the issue on the summary judgment motion.

4The plaintiffs further allege in their newly amended claim that Ontario, along with Canada and Quebec are directly negligent for an alleged failure to implement recommendations following an operational audit from 1991 which raised issues with that police service. The tenability of that plea was the issue on the motion to further amend the amended statement of claim.

The Test for Leave to Appeal

5Rule 62.02(4) provides:

62.02(4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

6A decision will be a "conflicting decision" within the meaning of rule 62.02 if a party can demonstrate a difference in the principles chosen by a judge to guide the exercise of his or her discretion.¹ Where these conflicting decisions on the interpretation of a matter of law are of general importance, these should be referred to the Divisional Court to resolve any apparent conflict.²

7A moving party does not have to convince the court that the decision it seeks to appeal from is wrong or even probably wrong, it is sufficient for the moving party to demonstrate that that the correctness of the decision is "open to very serious debate" and that it is a decision that warrants resolution by a higher level of judicial authority.³ [page621]

8Generally, a matter will be of "such importance that . . . leave to appeal should be granted" when it transcends the interests of the immediate parties and deals with issues of broader significance, general application or public importance that are relevant to the development of the law.⁴ This is particularly so if the matter deals with a statutory scheme of wide application, with the administration of justice or with the development of the law in a specific area.⁵

Summary Judgment Motion

9Ontario seeks leave to appeal the motion judge's decision on the summary judgment [[2012] O.J. No. 4098, 2012 ONSC 4951 (S.C.J.)] motion on the following grounds:

(a) The decision conflicts with decisions of the Supreme Court of Canada and the Court of Appeal for Ontario dealing with the proper test on a motion for summary judgment including Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1, [2011] O.J. No. 5431, 2011 ONCA 764.

(b) The motion judge erred in determining that a full evidentiary record was required and ignored the requirement that the parties put "their best foot forward" on such motions.

(c) The motion judge failed to conduct the analysis of vicarious liability as set out in the case law and in the context of the evidence and undisputed facts before her, in that she

-- ignored admissions made by Akwesasne;

-- considered irrelevant evidence;

-- raised issues that were irrelevant to the issue of vicarious liability; and

-- failed to properly apply s. 2(2) of the Proceedings Against the Crown Act, R.S.O. 1990 c. P.27.

(d) There is good reason to doubt the correctness of the decision that a trial is required. [page622]

10Québec cherche d'injecter appel sur ces mêmes motifs et de plus, il prétend que:

La juge n'a pas appliqué de façon appropriée les nouveaux pouvoirs qui lui sont confiés en vertu de la nouvelle règle 20 des Règles de procédure civile et ce de façon contraire aux enseignements de la Cour d'appel, à cet égard, dans Combined Air Mechanical Services Inc. v. Flesch, et qu'elle n'a pas procédé à une analyse de " l'Entente " et a plutôt tenu pour avérés les faits présentés par les demandeurs sans en analyser le bien fondé. La juge a ainsi conclu à un contenu erroné de " l'Entente ".

11The plaintiffs maintain that the motion judge's decision does not conflict with any other decision and that there is no reason to doubt the correctness of her decision. They say that the real complaint of the moving parties is not that the motion judge applied the wrong principles but with the result she reached having done so. They argue that based on the evidence that was before her and applying the appropriate principles, the motion judge could have come to no other conclusion but to dismiss the motions for summary judgment.

The Vicarious Liability Issue

12The allegations as against Ontario and Quebec are solely of a vicarious nature and are found in five paragraphs of the amended statement of claim:

20. The Defendants, [the federal Crown], [the Ontario Crown], [the Quebec Crown], and the [Council] have jointly established the Akwesasne Police Services Board and are in law jointly and severally responsible for the operation of that Board and the hiring and training of its police officers.

21. The Defendant, Constable Michael Biron (hereafter "Biron"), is a police officer employed by the Defendants, the Attorney General of Canada, Her Majesty the Queen in Right of Ontario, the Attorney General of Quebec, and the Mohawk Council of Akwesasne . . .

22. The Defendant, Sergeant Kenneth Chaussi (hereafter "Biron"), is a police officer employed by the Defendants, the Attorney General of Canada, Her Majesty the Queen in Right of Ontario, the Attorney General of Quebec, and the Mohawk Council of Akwesasne . . .

23. The Plaintiffs state that the deaths of Edward and Eileen Kassian were caused or contributed to by the negligence of the Defendants, Biron and Chaussi, which in law the Defendants [the federal Crown], [the Ontario Crown], [the Quebec Crown], and the [Council], are responsible for and which negligence consists of the following:

a) [allegations relating to the conduct of the Defendants Biron and Chaussi] . . .

. . . . . [page623]

34. The Plaintiffs state the Defendants, Biron and Chaussi, are liable for punitive damages, which in law the Defendants, 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, and the Attorney General of Quebec, are vicariously responsible for, and which punitive damages are based on the following facts:

a) [allegations relating to the conduct of the Defendants Biron and Chaussi] . . .

b) . . .

Quadripartite Agreement

13A series of agreements on the provision of police services have been entered into between Canada, Quebec, Ontario and the Mohawk Council of Akwesasne and have been in place since at least 1991. A finding of vicarious liability on the part of Ontario and Quebec for the torts of the police defendants arises from the interpretation of the quadripartite policing agreement in force from October 1, 2004, and which expired on March 31, 2010, and on the facts of this case.

14The plaintiffs maintain that this was a partnership agreement or joint venture between the parties with respect to the Akwesasne Mohawk Police Service and that this determination of a partnership or joint enterprise was dispositive of the vicarious liability issue.

15Ontario and Quebec argue that these policing agreements are meant to provide a local, autonomous and independent police force for First Nations communities and that their two provincial governments were involved solely because the territory in question was located in both Ontario and Quebec. The moving parties note the following elements of the agreement in issue.

16The agreement provided that policing in Akwesasne would be conducted primarily by the Akwesasne Mohawk Police Service ("AMPS"). First Nations constables are hired by the council and are appointed as such by the commissioner of the OPP pursuant to s. 54 of the Police Services Act⁶ ("PSA") and derive their policing authority in Ontario from that appointment. These constables must possess a policing diploma from a recognized school, including the Ontario Police College or l'École nationale de police du Québec. [page624]

17Article 6 establishes that the chief of police and the First Nations constables are employees of the council. Article 7 provides that the council, as the employer of the chief of police, the constables and civilian personnel of the AMPS, exercises overall responsibility in accordance with the terms and conditions of the agreement.

18Article 9.1 ensures that the AMPS is the principal police force established to provide police services on Akwesasne and art. 9.3 states:

The Parties recognize that the AMPS is of a distinctive nature and agree, subject to applicable laws, that the provisions of this Agreement shall not be interpreted as meaning that the AMPS is either a provincial or municipal police force.

19Article 21.2 specifically provides:

It is agreed that personnel employed as a result of the Agreement are and shall remain persons providing services to the Council and that nothing in the Agreement is to be read or construed as conferring upon the Council, its members, senior officers, employees, agents or contractors the status of officer, employee, servant or agent of Canada, Ontario or Quebec or the status of a person acting in a partnership or a joint venture with Canada, Ontario or Quebec.

20Ontario and Quebec submit that their role under the agreement was primarily financial. Each of them provided 24 per cent of the funding for policing services through 2004 to 2010. Council used those funds along with the funding from Canada (52 per cent) for policing in Akwesasne. In return, Ontario, Canada and Quebec were entitled to receive a yearly audited financial statement, a refund of surplus funds in excess of a percentage of their annual financial contributions.

21Aside from those provisions dealing with funding, there were a small number of articles in the agreement which permitted the three governments to perform other functions if they chose to do so. At para. 17 of her decision, the motion judge agreed that there was no evidence that anyone from Ontario and Quebec did anything, other than to provide funding as required under art. 12 of the agreement, during the relevant period.

22At discovery, the Mohawk Council of Akwesasne admitted that it was the owner of the vehicles driven by Constable Biron and Sergeant Chaussi. The Mohawk Council of Akwesasne took the position that it is, and was at the relevant time, the employer of both Constable Biron and Sergeant Chaussi and that it is responsible for the negligence of its employees, including the defendant officers in this case. The chief of police of AMPS on behalf of the Mohawk Council of Akwesasne admitted that he is [page625] responsible for the training of his officers although he obtains that continuing training for his officers from the Ontario Provincial Police, and that Ontario has taken no other role with respect to the agreement except to provide funding.

23The two defendant police officers stated on discovery that their employer at the relevant time was the Mohawk Council of Akwesasne and that their vehicles were owned by the council. It was the council which paid their salaries, and negotiated the rate of those salaries with their police association. Neither Ontario nor Quebec is involved in their professional discipline. Finally, except when engaged in joint operations with the Ontario Provincial Police, the police defendants do not accept orders from anyone employed by Ontario.

The Motion Judge's Decision

24The factual findings of the court are set out in paras. 1-21 of the motion judge's decision and the moving parties allege that these were solely taken from the affidavit of Kellie Stewart, an associate in the law firm for the plaintiffs. After setting out the positions of the parties and her analysis, the motion judge addressed the issue of vicarious liability as follows [at paras. 61-69]:

It is trite to say that vicarious liability is a fact driven exercise that will depend on all the circumstances.

It is also critical to examine the facts here in the context that Cornwall Island has, as stated in the Agreement"unique geographical challenges and jurisdictional complexities in that it includes land in Ontario, Québec, the State of New York and, has the Canada-United States border passing through the territory."

As stated earlier, the Canada Customs border crossing is located within a short distance of the point of impact of the accident in question. Any member of the public travelling from Canada to the U.S.A. is required to cross through the four stop-signed "Four Corners" intersection and to stop and report to Canada Customs.

I agree with the plaintiffs that the two provinces possess more control -- in addition to their ability to exercise even more if they choose to do so -- than arises from the provinces' submissions and evidence.

However, control is merely one indication of whether a worker acts on behalf of his employer; it is not determinative of whether vicarious liability would be imposed. In Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, at para. 20, the Supreme Court held that "[v]icarious liability may be imposed where there is a significant connection between the conduct authorized by the employer or controlling agent and the wrong." The court went on at para. 37 to state that joint vicarious liability is acceptable where there is a partnership. [page626]

Québec states that the Federal Government's First Nations Policing Policy is grossly underfunded. Can this fact impose liability on the parties to a joint enterprise?

I am of the view that an interpretation of the Agreement and a determination of vicarious liability will be more appropriately considered with a full evidentiary record such as can be produced at a trial. It may be that this four-party agreement, while appropriate in many ways, leaves important gaps in ensuring adequate police services for the protection of the public including both First Nations and others. Liability may flow from this failure. What is the legal effect of entering into such an Agreement and then failing to maintain the quality of policing by way of benign neglect?

Factual findings are required to determine the real extent and impact of control, the existence of any failure to monitor or address deficient policing, and the possible impacts of these issues on liability.

I am unable to conclude that the position of the plaintiffs is clearly untenable and that it is plain and obvious that it cannot succeed. Given the very unique questions raised in this case, I find that this is a case where the interests of justice require a trial. I dismiss the motions for summary judgment.

Application of the Test

Is there a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and is it, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted?

25The Court of Appeal has recently set out the test on a motion for summary judgment in Combined Air Mechanical Services Inc. v. Flesch, supra. There, the court set out the full appreciation test, at para. 50:

In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?

26By citing the "plain and obvious" test, at para. 69 of her decision (emphasis added), it appears that the motion judge applied the test for the motion to strike a claim instead of the test for summary judgment and that alone would put her decision in conflict with the leading decision of our Court of Appeal. While the respondents state that this is the test applied by the motion judge since she refers to it in para. 32 of her decision, her concluding words, in para. 69, put that argument into doubt. [page627]

27The other focus of the leave to appeal is the motion judge's review of the evidentiary before her. The moving parties argue that the motion judge erroneously relied solely on the affidavit of Kellie Stewart on behalf of the plaintiffs and that she failed to look at the uncontradicted evidence before her. They also submit that her reliance on irrelevant evidence or considerations led to her conclusion that better evidence at trial may be necessary and these errors also put her in conflict with the requirement that the responding party had to put their best foot forward.

28The Supreme Court in Canada (Attorney General) v. Lameman,⁷ as well as the Court of Appeal's decision in Combined Air Mechanical Services Inc. v. Flesch, set out the evidentiary obligations on the parties. Those cases, relying on the Superior Court decision in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co.,⁸ have recognized an obligation on a responding party to put their "best foot forward" on a motion for summary judgment with respect to material issues requiring a trial. Parties are not "entitled to sit back and rely on the possibility that more favourable facts may develop at trial".⁹

29The moving parties argue that the motion judge's decision conflicts with these cases in that the motion judge refused to interpret the agreement, or to make factual findings, not because there was conflicting evidence emanating from a number of witnesses and found in a voluminous record, but because of the possibility of further evidence at trial. On that basis, the motion judge refused to apply the undisputed law to the undisputed facts.

30I agree that the motion judge's review of the evidentiary record is problematic. She did not cite the evidence and the admissions referred to by both Ontario and Quebec in her analysis and she did not conclude there were conflicts in the evidence that required resolution at trial. Moreover, the decision may have confused the issue of direct negligence on the part of the defendants with the more narrow issue of vicarious liability. Her conclusion that a full evidentiary record would be required at trial relied on such issues as "geographical challenges and [page628] jurisdictional complexities" (para. 62); the existence of a "border crossing" (para. 63); her questions about "gross underfunding" (para. 66) and possible "gaps in ensuring adequate police services" (para. 67); yet none of these relate directly to the question of vicarious liability. While the motion judge notes, at para. 65 of her decision, that joint vicarious liability may be found where there is partnership, she made no such express finding that a partnership existed. The quadripartite agreement does not describe the arrangement between the parties as a partnership although one of the preambles states that the "Council, Canada, Ontario and Quebec have agreed to work in partnership and to cooperate in the maintenance of effective, policing services at Akwesasne".

31In the result, the decision appears to be in conflict with the case law that requires that the responding party to put their best evidentiary foot forward by, first, deferring to further evidence that could be available at trial and, secondly, by referring to further evidence that that was not relevant to the vicarious liability issue. I conclude that it is desirable that leave to appeal be granted.

There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

32The failure to cite the correct test for summary judgment in her concluding reasons is sufficient to doubt the correctness of her decision. Moreover, the motion judge did not address s. 2 of the Proceedings Against the Crown Act, which provides that even if a body is a Crown agent, to the extent that it can be sued in its own right, the Crown cannot be held directly liable.

33Moreover, to succeed in making out a claim for vicarious liability at common law, the case establishes that a plaintiff must show at least two things: first, that "the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close as to make a claim for vicarious liability appropriate" and, second, they "must demonstrate that the tort is sufficiently connected to the tortfeasor's assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise". As the Supreme Court found in B. (K.L.) v. British Columbia, [2003] 2 S.C.R. 403, [2003] S.C.J. No. 51, 2003 SCC 51, at paras. 19 and 20, the relationship that most commonly attracts vicarious liability is that of employer/employee. In contrast, vicarious liability will generally [page629] not be found in the context of an employer/independent contractor relationship or where the tortfeasor is too independent for the organization to take any measures to prevent such conduct.

34At para. 21 of B. (K.L.), the Supreme Court set out a functional test to determine whether the relationship between parties is sufficiently close so as to fairly impose vicarious liability. The functional approach requires a court to examine the "total relationship between the parties". In this case, the functional approach required an examination of the terms of the agreement which sets out the bounds of the relationship between Ontario and the AMPS at the relevant time, and also an analysis of the evidence extrinsic to the agreement which relates to Ontario's operational control over the AMPS.

35Applying the test in B. (K.L.) to the facts of this case, Ontario and Quebec argue that they cannot be held vicariously liable for the AMPS officers. They have no control over the AMPS officers, either by the terms of the agreement or in fact. The agreement does not create a relationship of sufficient closeness between Ontario, Quebec and the Akwesasne Mohawk Police officers such that vicarious liability should be imposed. The moving parties rely on art. 21.2, cited at para. 19 above.

36Looking outside the agreement, the moving parties argue that the evidence on the motion similarly made it apparent that they did not have a sufficiently close relationship to the AMPS officers to make it appropriate to impose vicarious liability upon them for their torts. The council admitted that it is the employer of the officers and that it owned the vehicles operated on the night of the accident. The chief of police and the two police defendants did not receive any operational direction or instruction during the relevant period with the exception being during the course of joint operations between AMPS and the OPP. While, like every police officer in Ontario, the officers attended Ontario Police College before becoming Akwesasne Mohawk Police Officers, and while they received yearly training with the OPP as arranged through their chief, Ontario submits that these factors do not by themselves create a sufficiently close relationship to warrant the imposition of vicarious liability. Neither does the appointment of those officers as special constables under s. 54 of the PSA.

37While she did not cite the two-part test, it appears that the motion judge addressed these issues but her review of the evidentiary record is problematic as set out above. This gives rise to an additional reason to doubt the correctness of her decision. Since the motion judge's decision on the summary [page630] judgment motion will have profound resource liability implications to Ontario, Quebec and other provinces which have entered into similar agreements with Canada and other First Nations, I agree that the issues raised by this proposed appeal warrant clarification and resolution by a higher level of judicial authority.

The Proposed Amendment of the Pleading

38The plaintiffs sought to amend their statement of claim to also allege that the 2008 deaths were caused by the failure of Canada, Ontario and Quebec to implement recommendations from a 1991 audit of the AMPS. The motion judge allowed the amendments in part.

39The new cause of action is alleged in the amended statement of claim as follows:

33.5 The plaintiffs state that the institutional defendants through their servants and agents were negligent by failing to implement the regular audits that were recommended in the 1991 audit report, which negligence caused or contributed to the deaths of Edward and Eileen Kassian as the deficiencies that were noted in the 1991 audit were evident and reflected in the conduct of the Akwesasne police officers on the 14th November, 2008, particulars of which are as follows . . .

For the purposes on this motion, the relevant particulars are the following:

(f) Sergeant Chaussi made no enquiries of Constable King, an AMPS member seconded to the RCMP as to the suspected offence of the van's driver, whether King had initiated a pursuit in Cornwall, whether the driver fled, whether the suspect drove aggressively, and whether the pursuit had been called off. Had he made such enquiries, the Plaintiffs state that the pursuit that resulted in the deaths of Edward and Eileen Kassian would not have occurred;

(g) Constable Biron, after being advised by Constable King, that the van was at the toll booth on Cornwall Island, made no enquiries of Constable King, an AMPS member seconded to the RCMP, as to the suspected offence of the van's driver, whether King had initiated a pursuit in Cornwall, whether the driver fled, whether the suspect drove aggressively, and whether that pursuit had been called off. Had he made such enquiries, the Plaintiffs state that the pursuit that resulted in the deaths of Edward and Eileen Kassian would not have occurred;

(h) Detective Constable Norman King, and AMPS member seconded to the RCMP and who was under its direction and control on the 14th November 2008, failed to advise Constable Biron, Sergeant Chaussi or the Akwesasne dispatcher that he had conducted a previous pursuit of the suspect in Cornwall, Ontario; that the suspect was driving at a high rate of speed and was driving aggressively. The Plaintiffs state that had such information been provided the pursuit and resulting deaths of Edward and Eileen Kassian would not have occurred;

(i) Detective Constable King, who was following the pursuit and given his knowledge as to what had occurred in Cornwall, should have ordered or [page631] requested that the pursuit be immediately called off and if he had done so the Plaintiffs state that the pursuit and resulting deaths of Edward and Eileen Kassian would never have occurred;

33.7 The plaintiffs further state that had the 1991 audit recommendation that further audits be held on a regular basis by the institutional defendants, the accident and resulting deaths on the 14th November 2008 would likely not have occurred.

40Canada, along with Ontario and Quebec, argued that the amendments failed to disclose a reasonable cause of action. There was no private law duty of care owed to the plaintiffs and, even if there was such a duty, it was negated by policy reasons. Ontario, Quebec and Canada seek leave to appeal that decision on similar grounds. They argue:

(a) The decision of the motion judge conflicts with the decision of the Court of Appeal for Ontario in Marks v. Ottawa (City),¹⁰ with respect to the application of the test to determine whether leave to amend ought to be granted, specifically with respect to whether amendments which do not disclose a reasonable cause of action, and which if originally pleaded would have been struck, ought to be allowed.

(b) It conflicts with decisions of the Supreme Court of Canada, the Court of Appeal for Ontario and other decisions of the Superior Court of Justice in respect to the test to be applied to determine whether a private law duty of care exists as between a governmental authority and a private litigant, including, among others, decisions of the Supreme Court in Cooper v. Hobart,¹¹ and R. v. Imperial Tobacco Canada Ltd.¹²

(c) The decision of the motion judge conflicts with the decision of the Supreme Court of Canada in Odhavji Estate v. Woodhouse¹³ and other decisions of the Superior Court of Justice in McLean v. Toronto (City) Police Service¹⁴ and the recent leave decision in Troy Bogner v. Joseph Tomei,¹⁵ in that the [page632] issue of whether Ontario owes a private law duty of care to individuals in the context of the oversight of police forces other than the Ontario Provincial Police.

(d) There is good reason to doubt the correctness of the motion judge's decision in that she did not conduct an Anns¹⁶ test, as recently modified in R. v. Imperial Tobacco to the question of whether there was a duty of care owed by Ontario to the plaintiffs.

(e) There is also good reason to doubt the correctness of the decision in that the motion judge allowed the claim to proceed despite the absence in the amended amended statement of claim of any pleading of a causal link between the alleged negligence and the harm allegedly suffered by the plaintiffs. Having denied the amendments going to causation, the motion judge ought to have found that the claim was untenable and denied leave to make any of the amendments with respect to that cause of action.

(f) The proposed appeals raise issues of importance beyond this litigation as the issues of the Crown's liability in respect to First Nations policing agreements, including vicarious liability and direct liability, have significant financial and legal ramifications to Ontario, First Nations, other provinces which have entered into similar agreements and the public as a whole.

41The plaintiffs maintain that the institutional defendants cannot point to a conflicting decision given the unique set of facts in this case and that there is no need to consider whether it is desirable that leave be granted. They argue that there is no reason to doubt the correctness of neither the motion judge's decision nor that it involves matters of such importance that leave ought to be granted.

Conflicting Decisions

42The Ontario Court of Appeal, in Marks v. Ottawa (City), has confirmed that, although amendments are generally allowed, a judge's discretion is governed by the principle that "[n]o amendment should be allowed which, if originally pleaded, would have been struck."¹⁷ As such, where a motion is brought [page633] under rule 26.01 but responded to under Rule 21, the legal test is the same test applicable on a motion to strike.

43Although the motion judge was aware of the test outlined in Marks, and cites it, the motion judge does not appear to have applied the test for a motion to strike. Even if she did, the moving parties submit that the motion judge's decision conflicts with a number of decisions which establish the test to be applied to determine whether a private law duty of care is owed by a governmental authority to a private litigant.

44They also argue that the motion judge's decision conflicts with appellate authorities on the test to be applied to determine whether pleadings disclose a reasonable cause of action. The Supreme Court of Canada in R. v. Imperial Tobacco recently confirmed the "plain and obvious" test for determining whether a pleading discloses a reasonable cause of action. The motion judge did not cite this test nor did she consider whether the claim had a reasonable prospect of success. Instead, the motion judge concluded that the claim was "worthy of trial".

45In order to determine if the pleading disclosed a cause of action, the first question is to determine whether the cause of action falls within a settled category that gives rise to a duty of care, which the motion judge did, at para. 103 of her decision. If the cause of action does not fall within a settled category, the applicable test to determine whether a public authority owes a private law duty of care is outlined by the House of Lords in Anns v. Merton Borough Council and must be applied. The Supreme Court of Canada most recently articulated the stages of the test in R. v. Imperial as follows [at para. 39]:

At the first stage of this test, the question is whether the facts disclose a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. If this is established, a prima facie duty of care arises and the analysis proceeds to the second stage, which asks whether there are policy reasons why this prima facie duty of care should not be recognized: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129.

46At the first stage of the Anns test, the case law establishes that a relationship of proximity between a government authority and a private litigant can only be found in two ways:

(1) where a specific series of interactions exists between the parties; or

(2) where a prima facie duty of care is set out in the applicable legislative scheme. [page634]

47In considering the amendments, it does not appear that the motion judge specifically applied the Anns test. She distinguished some of the cases cited by the defendants but her analysis of proximity did not consider specific interactions or the legislative scheme nor did she consider any policy reasons that would negate a duty of care.

48I also conclude that the decision of the motion judge also conflicts with the decision of the Supreme Court of Canada in Odhavji Estate v. Woodhouse and McLean v. Toronto Police, wherein it was found that the broad public supervisory and policy-making powers conferred on Ontario in the PSA do not give rise to a private law duty of care owed to members of the public. While the motion judge attempted to distinguish those cases on the basis that the claim in this case involved an Aboriginal police service, to which she found the PSA did not apply, there is an issue in that ss. 1 and 3 of the PSA speak to the Solicitor General's broad public law duties to ensure adequate policing in Ontario.

49The recent leave decision in Troy Bogner v. Joseph Tomei was not available to the motion judge at the time of her decision. In that case, the plaintiffs alleged that Ontario was negligent for a number of reasons relating to the oversight of the Orangeville Police with respect to domestic violence issues and that Ontario failed to monitor the Orangeville Police Services Board to ensure that the board complied with prescribed standards of service, including policing on the treatment of domestic assault offences. In particular, the allegation was that following an inquest into the death, from domestic violence, of Gillian Mary Hadley in or around 2002, HMQ undertook a review of municipal services to ensure that domestic violence policies and procedures were implemented appropriately, and that required improvements were made, and did not complete this review, failed to perform this review adequately or reasonably, and/or failed to ensure that necessary improvements were made. The motion judge had refused to strike the claim on the basis that this undertaking, coupled with s. 3(2) of the PSA, potentially created a relationship of close proximity between HMQ and the plaintiffs, victims of domestic abuse, such that a duty of care could be found at trial.

50In his endorsement, Justice Wilton-Siegel found that there was good reason to doubt the correctness of the motion judge's decision, in fact, finding that the motion judge erred. At paras. 12 and 13, he wrote:

More substantively, however, I think there is reason to doubt the motion judge's conclusion regarding proximity on this basis. Insofar as the motion [page635] judge considered that the undertaking together with the language of section 3(2) of the Police Services Act created a statutory duty of care, I think the motion judge erred. The only basis for liability based on the undertaking would be Crown actions in respect of the undertaking involving specific interactions with the plaintiff in carrying out the Crown's statutory duties.

However, I think there is good reason to doubt that the evidence in this case is sufficient to establish a duty of care in favour of the plaintiff on this basis. There is no allegation that the undertaking was given to the plaintiff. There is no allegation that there were any specific interactions between the Crown and the plaintiff in relation to issues of domestic violence. In short, there is an absence of any direct interaction between the Crown and the plaintiff necessary to establish proximity.

51In the absence of findings of any specific interaction between Ontario and the plaintiffs, I conclude that the motion judge's decision conflicts with the decision of Justice Wilton-Seigel. This is especially true given that the motion judge denied the plaintiffs leave to make many of the allegations that the alleged negligence resulted in the deaths of Edward and Eileen Kassian.

52I conclude that there are conflicting decisions and that is desirable that leave to appeal be granted.

Good Reason to Doubt the Correctness of the Decision

53At para. 117 of her decision, the motion judge denied the plaintiffs' leave to make the following allegations:

However, I cannot allow the proposed amendments as worded at paragraphs 33.5 and 33.7 . . .

33.5 (f), (j) and (n) The last sentence of each is hypothetical and not a material fact.

33.5 (p) The same observation applies to the last part of the sentence beginning "and if he had done so . . . "

54These were the specific allegations which directly connected the alleged negligence in failing to implement the audit recommendations with the deaths of Edward and Eileen Kassian. In the absence of those allegations, causation, an essential element of the tort, is not pled. The plaintiffs rely on the fact that causal connection is pleaded in para. 33.5 and that this paragraph was left intact. At the same time however, the motion judge would not allow the pleading at para. 33.7 which makes the same allegation. This contradiction raises doubts as to the correctness of her decision. Having denied the plaintiffs leave to make many of the allegations that the alleged negligence resulted in the accident and deaths of the Kassians, the asserted cause of action was rendered untenable. Moreover, the [page636] motion judge did not apply the well-established Anns test to determine whether Canada owed a prima facie duty of care to the plaintiffs.

55Given the potential impact on Ontario, Quebec and Canada's liability under this agreement and others of the same nature, and other contexts in which plaintiffs may argue that the decision not to follow up on recommendations set out in a report or audit gives rise to a relationship of proximity and a prima facie private law duty of care owed to members of the public at large, the issues raised by this proposed appeal warrant clarification and resolution by a higher level of judicial authority.

56Accordingly, leave to appeal the decision is granted. Costs of the motion are reserved to the court hearing the appeal.

Motion granted.

Notes

Footnotes

1. 1Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542, [1992] O.J. No. 652 (Div. Ct.), at para. 7; and Brownhall v. Canada (Minister of National Defence) (2006), 2006 7505 (ON SC), 80 O.R. (3d) 91, [2006] O.J. No. 672 (S.C.J.), at para 27.
2. 2Brownhall, supra, at para. 29.
3. 3Brownhall, supra, at para. 30; and MacGregor v. Royal and Sun Alliance Insurance Co. of Canada, [2009] O.J. No. 3573, 180 A.C.W.S. (3d) 380 (S.C.J.), at para. 20.
4. 4Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569, [1986] O.J. No. 2380 (H.C.J.), at 4-5; and Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110, [1988] O.J. No. 525 (Div. Ct.), at 3.
5. 5Brownhall, supra, at para. 80.
6. 6R.S.O. 1990, c. P.15.
7. 7Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, [2008] S.C.J. No. 14.
8. 8Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423, [1996] O.J. No. 1568 (Gen. Div.).
9. 9Combined Air Mechanical, supra, at para. 56.
10. 10[2011] O.J. No. 1445, 2011 ONCA 248, 280 O.A.C. 251.
11. 11[2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 2001 SCC 79.
12. 12[2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42.
13. 13[2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, 2003 SCC 69.
14. 14[2001] O.J. No. 2882, [2001] O.T.C. 551 (S.C.J.).
15. 152012 ONSC 3939 (S.C.J.), leave to appeal the order granted (August 8, 2012).
16. 16Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.).
17. 17Marks v. Ottawa (City), supra, para. 19.