Castle et al. v. Her Majesty the Queen in Right of Ontario

[Indexed as: Castle v. Ontario]

Ontario Reports

Ontario Superior Court of Justice,

Lederman J.

June 18, 2014

121 O.R. (3d) 46 | 2014 ONSC 3610

Case Summary

Damages — Family law — Police officers failing to arrest severely intoxicated offender despite their knowledge that offender had twice assaulted deceased in past, lived with deceased and was on probation — Deceased's family members suing police under s. 61 of Family Law Act on basis that police breached their duty of care to protect deceased — Defendant's motion to strike statement of claim as disclosing no reasonable cause of action dismissed — Plaintiffs not required to establish that duty of care was owed to them rather than to deceased — Family Law Act, R.S.O. 1990, c. F.3, s. 61.

Police — Duty of care — Police officers failing to arrest severely intoxicated offender despite their knowledge that offender had twice assaulted deceased in past, lived with deceased and was on probation — Deceased's family members suing police under s. 61 of Family Law Act on basis that police breached their duty of care to protect deceased — Defendant's motion to strike statement of claim as disclosing no reasonable cause of action dismissed — That police did not [page47 ]have duty of care to deceased in these circumstances not plain and obvious — Family Law Act, R.S.O. 1990, c. F.3, s. 61.

The police were called when the severely intoxicated R became involved in an altercation with a group of youths. Despite their knowledge that R had a history of violence, was on probation, was inadequately supervised by his drug addict father, had twice assaulted L in the past, and lived in the same house as L, the officers did not arrest R but instead took him home and released him into his father's custody. Later that night, R fatally stabbed L. L's family members brought an action under s. 61 of the Family Law Act alleging that the police breached their duty of care to protect L when it released R from custody. L's estate was not named as a plaintiff. The defendant brought a motion to strike the statement of claim as disclosing no reasonable cause of action.

Held, the motion should be dismissed.

Plaintiffs bringing an action under s. 61 of the Family Law Act are not required to establish that a duty of care was owed to them, rather than to the deceased, where the deceased's estate is not a plaintiff to the action.

In exceptional circumstances where a special relationship of proximity exists, courts have found that police owe a private law duty of care to individual members of the public. It was not plain and obvious that the duty of care alleged by the plaintiffs has been rejected by the courts. Nor was it plain and obvious that the statement of claim did not demonstrate that L's harm was foreseeable, that the alleged facts did not establish a special relationship of proximity between the police and L, or that there were residual policy considerations which negated a prima facie duty of care.

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, REJB 2001-26862, 110 A.C.W.S. (3d) 943, apld

Haggerty Estate (Litigation Administration of) v. Rogers, [2011] O.J. No. 4447, 2011 ONSC 5312, 89 C.C.L.T. (3d) 256, 208 A.C.W.S. (3d) 252 (S.C.J.); Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 1990 6611 (ON SC), 74 O.R. (2d) 225, [1990] O.J. No. 1584, 72 D.L.R. (4th) 580, 40 O.A.C. 161, 5 C.C.L.T. (2d) 77, 50 C.P.C. (2d) 92, 1 C.R.R. (2d) 211, 22 A.C.W.S. (3d) 869, 10 W.C.B. (2d) 577 (Div. Ct.), affg 1989 5300 (ON SC), [1989] O.J. No. 471, 58 D.L.R. (4th) 396, 48 C.C.L.T. 105, 14 A.C.W.S. (3d) 407, 7 W.C.B. (2d) 40 (H.C.J.), consd

Patrong v. Banks, [2013] O.J. No. 4360, 2013 ONSC 5746, 5 C.C.L.T. (4th) 126, 233 A.C.W.S. (3d) 1011 (S.C.J.); Project 360 Investments Ltd. (c.o.b. Sound Emporium Nightclub) v. Toronto Police Services Board, [2009] O.J. No. 3316, 2009 36380, 179 A.C.W.S. (3d) 531 (S.C.J.), distd

Other cases referred to

de Vlas v. Bruce (1994), 1994 7267 (ON SC), 18 O.R. (3d) 493, [1994] O.J. No. 720, 25 C.P.C. (3d) 140, 3 M.V.R. (3d) 115, 46 A.C.W.S. (3d) 1252 (Gen. Div.); Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, [2001] S.C.J. No. 77, 2001 SCC 80, 206 D.L.R. (4th) 211, 277 N.R. 145, J.E. 2001-2152, 153 O.A.C. 388, 34 Admin. L.R. (3d) 38, 8 C.C.L.T. (3d) 153, 13 C.P.C. (5th) 35, REJB 2001-26863, 110 A.C.W.S. (3d) 944; Eliopoulos v. Ontario (Minister of Health & Long-Term Care) (2006), 2006 37121 (ON CA), 82 O.R. (3d) 321, [2006] O.J. No. 4400, 276 D.L.R. (4th) 411, 217 O.A.C. 69, 43 C.C.L.T. (3d) 163, 35 C.P.C. (6th) 7, 152 A.C.W.S. (3d) 622 (C.A.); Giroux v. Pollesel (2011), 106 O.R. (3d) 391, [2011] O.J. No. 1627, 2011 ONSC 2259 (S.C.J.); Heaslip Estate v. Mansfield Ski Club Inc. (2009), 96 O.R. (3d) 401, [2009] O.J. No. 3185, 2009 ONCA 594, 310 D.L.R. (4th) 506, 67 C.C.L.T. (3d) 1, 252 O.A.C. 1, 179 A.C.W.S. (3d) 1224; Just v. British Columbia, 1989 16 (SCC), [1989] 2 S.C.R. 1228, [1989] S.C.J. No. 121, 64 D.L.R. (4th) 689, 103 N.R. 1, [1990] 1 W.W.R. 385, J.E. 90-18, 41 B.C.L.R. (2d) 350, 41 Admin. L.R. 161, 1 C.C.L.T. (2d) 1, 18 M.V.R. (2d) 1, 18 A.C.W.S. (3d) 527; Prete v. Ontario (1993), 1993 3386 (ON CA), 16 O.R. (3d) 161, [1993] O.J. No. 2794, 110 D.L.R. (4th) 94, 68 O.A.C. 1, 86 C.C.C. (3d) 442, 18 C.C.L.T. (2d) 54, 18 C.R.R. (2d) 291, 45 A.C.W.S. (3d) 235, 22 W.C.B. (2d) 157 (C.A.) [Leave to appeal to S.C.C. refused (1994), 17 O.R. (3d) xvi, [1994] 1 S.C.R. x, [1994] S.C.C.A. No. 46]; Thompson v. Cameron (1982), 1982 1797 (ON SC), 39 O.R. (2d) 555, [1982] O.J. No. 3542, 31 C.P.C. 127 (H.C.J.); Williams v. Canada (Attorney General) (2009), 95 O.R. (3d) 401, [2009] O.J. No. 1819, 2009 ONCA 378, 310 D.L.R. (4th) 710, 70 C.P.C. (6th) 213, 249 O.A.C. 150, 57 M.P.L.R. (4th) 164

Statutes referred to

Family Law Act, R.S.O. 1990, c. F.3, s. 61 [as am.]

Police Services Act, R.S.O. 1990, c. P.15 [as am.], s. 58 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1) (b)

Authorities referred to

Archibald, Todd, Gordon Killeen and James C. Morton, Ontario Superior Court Practice (Markham, Ont.: LexisNexis Canada Inc., 2013)

MOTION for an order striking a statement of claim.

Susan Zakaryan, for plaintiffs.

Sandra Nishikawa, for defendant.

LEDERMAN J.: —

Nature of the Motion

[1] This is a motion brought by the defendant, Her Majesty the Queen in Right of Ontario, pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendant seeks to strike the plaintiffs' statement of claim on the ground that it discloses no reasonable cause of action.

Facts as Pleaded in the Amended Statement of Claim

[2] This is an action for damages against the Ontario Provincial Police (the "OPP") by family members of Jesse-James Low ("Low"). Low was stabbed and killed by his friend, Raymond Reid ("Reid"), in 2011. The plaintiffs are Low's mother, brother and grandmother. They have brought an action under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA") alleging that the OPP breached its duty of care to protect Low when it released his killer from custody. Low's estate is not named as a plaintiff in the action.

[3] On September 2, 2011, Low was stabbed in the stomach and killed by Reid. Earlier that day, Reid, Low and another friend, David Ferguson ("Ferguson"), had attended a fair in Kinmount, Ontario. Reid was severely intoxicated. The three were separated. Reid had an altercation with a group of youths during which he assaulted them and tore down a tent pole. At the time, Reid was on probation, having been convicted of assault causing bodily harm on October 20, 2010. A condition of his probation was to keep the peace and be of good behaviour. In addition, Reid had been charged in August 2011 with failing to report an accident.

[4] The OPP attended the scene and saw that Reid was severely intoxicated. The officers did not charge Reid. Instead, they transported him to the residence of Douglas Meecham ("Meecham"), Reid's father, and released him into his father's custody. Low lived at Meecham's home, and was in a relationship with Meecham's daughter (Reid's sister). Shortly thereafter, Reid left the house and met up with Low and Ferguson at Ferguson's residence. There was subsequently a dispute between Reid and Low resulting in Low being stabbed in the stomach with a steak knife. Reid called Meecham, who attended at the Ferguson residence and transported Low back to his house rather than calling an ambulance. Although eventually an ambulance was called, Low died of his injuries.

Positions of the Parties

[5] The plaintiffs allege that the officers owed Low a private law duty of care because they knew that Reid had a violent history, had assaulted Low on two prior occasions and was extremely intoxicated when they attended the fair. The plaintiffs further allege that the officers knew that Low and Reid both resided at Meecham's house, and that Reid was in violation of his probation terms. They argue that the police knew or ought to have known that Reid was dangerous to others at that time, and that they breached the duty of care by failing to keep Reid in their custody.

[6] The defendant asserts that the OPP does not owe a private law duty of care to the plaintiffs or Low, but rather owes a public law duty to the general public. It submits that courts have rejected the proposition that police owe a private law duty of care to individuals, and specifically to victims of crime. The [page50 ]defendant asserts that this case is not analogous to the exceptional cases where such a duty has been found to exist. It argues that the claim should be struck out on this basis.

[7] Alternatively, the defendant submits that applying the Cooper-Anns test established by the Supreme Court of Canada in Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 2001 SCC 79 ("Cooper") leads to the conclusion that there is no prima facie duty of care owed in these circumstances.

[8] It is apparent from the defendant's submissions that it takes the position that the plaintiffs must show that the OPP owed a duty of care to the plaintiffs, in their capacity as Low's relatives, rather than to Low himself. It submits that there is no special relationship of proximity between the OPP and the plaintiffs. It further submits that the harm to Low was not foreseeable, and that in any event, a duty of care should not be recognized in these circumstances for policy reasons.

[9] The plaintiffs submit that the duty of care alleged in this case falls within an established category where the police have been found to owe a private law duty of care, specifically a duty owed to a narrow and distinct group of potential victims. They cite Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 1990 6611 (ON SC), 74 O.R. (2d) 225, [1990] O.J. No. 1584 (Div. Ct.) ("Jane Doe"), affg 1989 5300 (ON SC), [1989] O.J. No. 471, 58 D.L.R. (4th) 396 (H.C.J.), in support of their position. Alternatively, they submit that their pleadings disclose foreseeability and proximity between Low and the OPP under the Cooper-Anns test. They submit that there are no policy considerations to negate the prima facie duty of care that they allege.

[10] The parties agree that on a rule 21.01(1)(b) motion, the defendant must show that it is "plain and obvious" that the plaintiffs' claim cannot succeed. They also agree that the facts alleged in the plaintiffs' claim are taken to be true.

Issues on the Motion

[11] The defendant's motion raises the following issues:

(1) Are plaintiffs bringing an action under s. 61 of the FLA required to establish that a duty of care was owed to them, rather than the deceased, where the deceased's estate is not a plaintiff to the action?

(2) Is it plain and obvious that the plaintiffs' pleading does not disclose a reasonable cause of action?

(a) Is the alleged duty of care a category established in law or has it been rejected in the jurisprudence? [page51 ]

(b) Does the plaintiffs' amended statement of claim establish a prima facie duty of care; i.e., do they sufficiently establish proximity and foreseeability, and do residual policy considerations warrant negating such a duty?

Analysis

Are plaintiffs bringing an action under s. 61 of the FLA required to establish that a duty of care was owed to them, rather than the deceased, where the deceased's estate is not a plaintiff to the action?

[12] The defendant argues that apart from any duty of care owed to Low, it is even less conceivable that a duty of care is owed in these circumstances because the plaintiffs, as relatives of Low, are "one step further removed" from the OPP than Low.

[13] This argument is not supported by either the wording of the legislation or the jurisprudence.

[14] The plaintiffs have brought their claim pursuant to s. 61 of the FLA, which states as follows:

Right of dependants to sue in tort

61(1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.

[15] The reference to dependants' rights to recover losses that an injured or killed person "would have been entitled to recover" suggests that dependants need only prove that the duty of care was owed to the victim.

[16] A cause of action may be asserted under s. 61 irrespective of whether the deceased or his or her personal representative has commenced an action: see Thompson v. Cameron (1982), 1982 1797 (ON SC), 39 O.R. (2d) 555, [1982] O.J. No. 3542 (H.C.J.). In de Vlas v. Bruce (1994), 1994 7267 (ON SC), 18 O.R. (3d) 493, [1994] O.J. No. 720 (Gen. Div.), MacPherson J. stated the following, at 507 O.R.:

[T]he wording of s. 61 of the Family Law Act . . . ties the dependants' derivative claim to the victim's entitlement to recover damages. Section 61 does not say that the victim or his or her estate must actually bring an action; it provides only that the victim must be entitled to do so. [page52 ]

[17] More recently, Cornell J. stated the following in Giroux v. Pollesel (2011), 106 O.R. (3d) 391, [2011] O.J. No. 1627, 2011 ONSC 2259 (S.C.J.), at para. 17:

To the extent that Family Law Act claims are derivative in nature, they are based on the entitlement of the principal plaintiff to maintain an action in respect of injuries sustained. Once the threshold of entitlement is met, the Family Law Act claim can proceed, whether or not the principal plaintiff has pursued a claim.

[Emphasis in original]

[18] Given that the right of action is derivative in nature, it would not make sense if claimants under s. 61 were required to establish a duty of care beyond what was owed by the defendant to the deceased. I am satisfied that the plaintiffs are only required to establish that a duty of care was owed by the OPP to Low.

Is it plain and obvious that the plaintiffs' pleading does not disclose a reasonable cause of action?

a. Is the alleged duty of care a category established in law or has it been rejected in the jurisprudence?

[19] The defendant submits that the courts have rejected the idea that police owe a private law duty of care to individual members of the public. Courts have held instead that police owe a duty of care to the general public, and must balance a number of competing interests in executing that duty. The defendant cites Project 360 Investments Ltd. (c.o.b. Sound Emporium Nightclub) v. Toronto Police Services Board, [2009] O.J. No. 3316, 2009 36380 (S.C.J.) ("Project 360") and Patrong v. Banks, [2013] O.J. No. 4360, 2013 ONSC 5746 (S.C.J.) ("Patrong") in support of its position. In both cases, the court held that police did not owe a private law duty of care to victims of crime.

[20] The defendant submits that an exception to this general principle was established in Jane Doe, where the facts were sufficient to establish a special relationship of proximity between the police and the victim. It submits that the facts in the instant case differ significantly from those in Jane Doe, and as a result it does not support a finding of a duty of care in the circumstances.

[21] The plaintiffs submit that the duty of care they assert was recognized in Jane Doe. They argue that similar to this case, the police in Jane Doe knew of the existence of a dangerous individual, that it was foreseeable that he would strike again, and knew or ought to have known that the victim was part of a narrow group of potential victims. [page53 ]

[22] It is apparent that in exceptional circumstances where a special relationship of proximity exists, courts have found that police can owe a private law duty of care to individual members of the public. As a result, I find that it is not plain and obvious that the duty of care alleged by the plaintiffs has been rejected by the courts. I am aware that the Project 360 and Patrong cases demonstrate that police will usually not owe a duty of care to individuals, absent special circumstances. As a result, I am of the view that in order to determine whether the plaintiffs' claim discloses a reasonable cause of action, I must determine whether their pleading establishes a prima facie duty of care under the Cooper-Anns test.

b. Does the plaintiffs' pleading establish a prima facie duty of care?

[23] Both parties agree that the starting point for determining whether a duty is owed in the circumstances is the governing statutory scheme. The plaintiffs concede that courts have held that under the Police Services Act, R.S.O. 1990, c. P.15 ("PSA"), police owe duties to the public at large. However, as noted, they argue that courts have nonetheless held that a duty is owed by police to individuals in exceptional circumstances.

[24] The parties agree that if an alleged duty of care has not been recognized or rejected previously, a court must determine whether the foreseeability of harm and proximity between the parties give rise to a prima facie duty of care. If such a duty is found, the court must then determine whether there are residual policy considerations that would negate the duty of care: see Cooper, at paras. 21-39.

i. Foreseeability

[25] The defendant submits that the harm to Low was not reasonably foreseeable by the police. It argues that the amended statement of claim describes a chain of events that are entirely unforeseeable: the fight at the fair was not with Low but with others; after Reid was released to his father's custody, he went from the Meecham residence to Ferguson's home; after an argument ensued at that location and Low was stabbed in the stomach, Reid called Meecham; instead of calling an ambulance, Meecham took Low to his house; after this delay, the ambulance was called; and Low subsequently died from internal bleeding. [page54 ]

[26] The plaintiffs rely on Haggerty Estate (Litigation Administration of) v. Rogers, [2011] O.J. No. 4447, 2011 ONSC 5312 (S.C.J.) ("Haggerty"), in which Turnbull J. held that police owed a duty of care to a stabbing victim despite the fact that the event was not predictable. They submit that they need not show that the OPP knew what harm Reid could cause to Low, but that they only need to show that the OPP should reasonably have contemplated that Reid would commit a violent crime against Low. They further submit that it was foreseeable that Reid would rejoin Low and Ferguson after his release, as the police knew that the three had been together earlier in the day.

[27] I find that it is not plain and obvious that the plaintiffs' pleading does not demonstrate that Low's harm was foreseeable. The pleading alleges that the OPP knew that Reid was violent and dangerous, that he lived with Low and that he had assaulted him in the past. It also alleges that the police knew that Meecham, a drug addict, could not and had not controlled Reid in the past. In the circumstances, it is not plain and obvious that the harm to Low was not foreseeable.

ii. Proximity

[28] The defendant submits that the plaintiffs' amended statement of claim fails to allege any interaction between the plaintiffs and the OPP that would give rise to a special relationship of proximity. It submits that if Reid was a threat, he was a threat to the public at large, much like the shooter in Patrong was held to be. The defendant submits that like the plaintiff in Patrong, the plaintiffs have failed to establish that Low had a greater claim to protection from Reid than any other member of the public.

[29] The plaintiffs submit that the facts of this case are similar to those in Haggerty. They argue that in Haggerty, the group of potential victims was everyone in the City of Hamilton, and yet Turnbull J. held that a duty of care was owed. They submit that in this case, the events occurred in a small town, and that the potential victims belonged to an even narrower group -- residents of the house into which Reid was released.

[30] In Williams v. Canada (Attorney General) (2009), 95 O.R. (3d) 401, [2009] O.J. No. 1819, 2009 ONCA 378 ("Williams"), the Ontario Court of Appeal discussed the concept of proximity in the following terms, at para. 14:

Proximity, explained the court in Cooper, at para. 31, "is generally used in the authorities to characterize the type of relationship in which a duty of care may arise." Two parties are in proximity with one another if their relationship is sufficiently close and direct that it is fair to require the defendant to be mindful of the legitimate interests of the plaintiff: Cooper, at paras. 32-34. The evaluation of whether a relationship is sufficiently proximate to ground a duty of care entails a consideration of the "expectations, representations, reliance, and the property or other interests involved. Essentially . . . factors that allow us to evaluate the closeness of the relationship between the plaintiff and the defendant and to determine whether it is just and fair having regard to that relationship to impose a duty of care": Cooper, at para. 34.

[31] There are a number of cases discussing whether police owe a duty of care to individuals that are relevant to this matter. They emphasize that police knowledge of the victim is an essential aspect for finding proximity between the police and victims of crime.

[32] In Jane Doe, the Divisional Court affirmed the motion judge's holding that police owed a private law duty to warn the victim of a serial rapist. At p. 230 O.R., Moldaver J. noted that the defendants allegedly knew the plaintiff because she had become part of a "narrow and distinct group of potential victims", and therefore supported a finding that a special relationship of proximity existed.

[33] In Project 360, MacDonnell J. rejected the claim that the police owed a private law duty of care to a nightclub that suffered business losses after one of its patrons shot another. The plaintiff pleaded that the shooter was under investigation and known to police as a gang member with a violent history, and that the police knew that he intended to go to the nightclub with a firearm. The plaintiff argued that the police ought to have prevented the shooter from entering the nightclub and/or warned the nightclub of the shooter's intention to enter.

[34] Justice MacDonnell noted that the plaintiff had not pleaded that prior to the shooting, the police knew of any connection -- past, present or prospective -- between the nightclub and the shooter, and therefore the plaintiff had not established a special relationship of proximity between the police and the plaintiff. The motion to strike the pleading alleging a private law duty of care owed by the police to the plaintiff was allowed.

[35] In Patrong, the victim of a drive-by shooting sued Toronto Police Services (the "TPS") alleging, inter alia, that it was negligent in failing to exercise reasonable care to guard against foreseeable harm. The plaintiffs alleged that the TPS had been following the shooter, and had sufficient information to know that Patrong belonged to a narrow and identifiable [page56 ]group (young black males in the Malvern area of Toronto) of victims.

[36] Chiappetta J. held that the facts alleged did not support a finding that the TPS owed Patrong a private law duty of care. She held that the TPS did not have the requisite knowledge of the victim prior to the shooting to establish a special relationship of proximity. Although the TPS had knowledge and concern that the shooter was a threat to the public generally, it had no knowledge of Patrong prior to the incident. Justice Chiappetta stated the following, at paras. 46-47:

. . . I conclude that the Claim does not describe a special relationship of proximity. Police may owe a private law duty of care to a crime victim when a special relationship of proximity exists. However, in the circumstances of the Claim, it would not be fair or reasonable to require the defendants while conducting their statutory duties to be more mindful of Patrong's legitimate interests than those of all Malvern residents and the general public.

[37] Turnbull J.'s decision in Haggerty constitutes, to a certain extent, a departure from Project 360 and Patrong. In that case, he held that Hamilton Police Services ("HPS") owed a duty of care to Haggerty, who was stabbed by his friend Rogers. Rogers, who was on Hamilton's "Most Wanted List" for violent crimes, had called 911 twice to advise the authorities that he wished to turn himself in. He was told to attend a police station. One hour later, two officers attended at the address from which Rogers had called; however, they were unable to locate him. Approximately one week later, the suspect stabbed his friend in the neck at a pub, killing him. An action was brought by the victim's estate and several of his family members. They alleged, inter alia, that the police were negligent by failing to act within established policies. They pleaded that the HPS knew of Rogers' propensity to commit "outrageous" violent crimes, and that their claim was analogous to that in Jane Doe.

[38] Turnbull J. noted there was a spectrum of cases discussing whether a government regulatory body owes a private law duty of care to an individual. At one end, courts have held that no such duty exists (e.g., Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, [2001] S.C.J. No. 77, 2001 SCC 80; Eliopoulos v. Ontario (Minister of Health and Long-Term Care) (2006), 2006 37121 (ON CA), 82 O.R. (3d) 321, [2006] O.J. No. 4400 (C.A.); and Williams, supra). At the other end, courts have found a sufficient link between the regulatory authority and the plaintiff that has created a specific proximity of relationship to ground a cause of action. Turnbull J. noted that in Just v. British Columbia, the Supreme Court held that the provincial government, in carrying out its highway inspection policy, owed a duty of care to the victims of a falling boulder despite the fact that the specific identity of the victims was not known to the province.

[39] Turnbull J. also referred to Heaslip Estate v. Mansfield Ski Club Inc. (2009), 96 O.R. (3d) 401, [2009] O.J. No. 3185, 2009 ONCA 594 ("Heaslip"). In that case, the Ontario Court of Appeal found proximity between a victim suffering from a tobogganing accident and the provincial government, which was alleged to have not followed established policies in the delivery of air ambulance services. The court found that the plaintiff's relationship with the government authority was direct, rather than mediated by a party subject to the regulatory control of a governmental authority.

[40] Justice Turnbull [in Haggerty] ultimately held that a Cooper-Anns analysis was unnecessary, as the plaintiffs' claim against the HPS fell within an established category. He stated the following, at para. 72:

. . . I find that the case at bar falls closer to the Jane Doe end of the spectrum of cases. The duty of care alleged in the case at bar falls within the recognized class of cases involving a public authority's negligent failure to act within established policies when it was foreseeable that failure to do so may result in physical harm to a member of the community who is alleged to have had a pre-existing relationship with Mr. Rogers, or who arguably was in geographical proximity with Rogers.

[41] It is possible that Turnbull J.'s decision is not a departure from Project 360 and Patrong to the extent that his finding was grounded in the government's failure to follow established policies. In any event, the answer to this is not required for the purposes of this decision. After considering these cases, I find that it is not plain and obvious that the facts alleged by the plaintiffs do not establish a special relationship of proximity between the OPP and Low.

[42] The plaintiffs allege the following facts in their amended statement of claim:

that the OPP officers personally knew Reid and his family. They knew that Reid was a troubled youth with anger problems and knew he was a dangerous individual, particularly when intoxicated;

that they knew Reid was severely intoxicated, and had reasonable and probable grounds to suspect that he had assaulted a group of youths at the fair; [page58 ]

that they knew that Reid had been convicted of assault causing bodily harm, and was in breach of his probation terms;

that they knew that Low was a resident of Meecham's house, where Reid was dropped off;

that they knew Reid had attacked and assaulted Low on two prior occasions;

that they knew that Meecham had failed to control Reid in the past; and

that they knew that Reid and Low had been together earlier in the day, and ought to have known that Reid would likely rejoin Low.

[43] The OPP's knowledge that Low was previously assaulted by Reid, and that the two lived together, arguably creates a "close and direct" relationship between the OPP and Low. If these facts are true, the police would arguably have known that Low was in a narrow group of Reid's potential victims, similar to the cases in Jane Doe and Haggerty. Importantly, this knowledge distinguishes the present case from Project 360 and Patrong.

[44] In Project 360, MacDonnell J. found that the plaintiff nightclub had not pleaded that the police had any knowledge that the shooter had any link with the nightclub, or that the police had any relationship with the plaintiffs prior to the shooting. In Patrong, a key aspect of Chiappetta J.'s reasoning was that the police had no knowledge of Patrong prior to the shooting, and he had no greater claim to police protection than other residents of Malvern or the general public. Justice Chiappetta noted that in Jane Doe, the plaintiff pleaded that she was readily identifiable as a potential victim, that the police specifically decided not to warn her, and that the police also admitted that they should have issued a warning in the circumstances. Unlike in Jane Doe, the police did not know that Patrong was a specific and likely target. The pleadings did not contain allegations that sufficiently distinguished the relationship between the police and Patrong from that between the police and the general public.

[45] In the instant case, the plaintiffs have pleaded that the police officers were aware of Reid's relationship with Low, and more importantly, that Low had been a victim of Reid's in the past. The extent to which police knew Reid posed a danger to [page59 ]Low is a factual issue that ought to be explored further. It could be that the OPP's knowledge in this regard will be insufficient to ground a duty of care. However, at this stage of the action -- on a pleadings motion -- it is not plain and obvious that proximity has not been established.

[46] In oral submissions, counsel for th