Conley v. Chippewas of the Thames First Nation Chief, 2015 ONSC 404

CITATION: Conley v. Chippewas of the Thames First Nation Chief, 2015 ONSC 404

COURT FILE NO.: 1338-2010

DATE: 2015/04/24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Pauline Conley (Plaintiff)

• and -

Chippewas of the Thames First Nation Chief and Councillors: and Chippewas of the Thames Police Constables, Brian French and Stg. [sic] Dan Riley; Oneida Nation of the Thames Police Cst. Keith Riley; Her Majesty the Queen in Right of the Province of Ontario; Her Majesty the Queen in Right of Canada (Defendants)

BEFORE: Justice H. A. Rady

COUNSEL: Wanda B. F. Corston, for the plaintiff

Laura Tausky, for Her Majesty the Queen in right of Canada

Nadia Laeeque, for Her Majesty the Queen in right of Ontario

Hugh Griffith-Jones, for the Defendants, Chippewas of the Thames First Nation Chief and Councillors and Chippewas of the Thames Police Constables Brian French and Sgt. Dan Riley, not appearing on motion

HEARD: January 19, 2015

ENDORSEMENT

Introduction

[1] There are two motions before me. The first is a motion by the defendant Her Majesty the Queen in right of Canada (the federal Crown) who moves pursuant to Rule 21.01(1)(b) to strike, without leave to amend, the allegations against the federal Crown in the plaintiff’s amended statement of claim dated May 31, 2011. The federal Crown submits that the claim as pleaded fails to disclose any material facts which would give rise to a cause of action against the federal Crown.

[2] The other motion is brought by Her Majesty the Queen in right of Ontario (the provincial Crown) for summary judgment pursuant to Rule 20.01(3) on the basis that there is no genuine issue requiring a trial. The provincial Crown submits that there is neither evidence, nor any legal authority, to substantiate the allegations in the amended statement of claim that the provincial Crown owes the plaintiff a private law duty of care.

[3] In response, the plaintiff has filed her own motion for an order that the action discloses a reasonable cause of action and that there is a genuine issue for trial. In the alternative, she seeks leave to amend the statement of claim.

[4] By way of very brief overview, the plaintiff’s claim arises from her eviction from the Antler River Seniors’ Housing Complex, which is owned by the Chief of the Chippewas of the Thames First Nation. The housing complex is located on provincially owned land adjacent to, but outside the Chippewas of the Thames First Nation Reserve.

[5] The plaintiff seeks damages from the federal Crown on the basis of negligence and/or by virtue of a breach of a fiduciary duty, breach of legislative responsibility, as well as for nuisance and vicarious liability.

[6] As against the provincial Crown, the plaintiff’s claim is framed in negligence for failing to make information regarding guidelines for law enforcement issues publicly available, for failing to ensure that acceptable protocols dealing with the plaintiff were in place and for failing to come to her assistance when she was being evicted.

[7] I will return to the allegations in more detail later. The federal Crown has filed no evidence, consistent with the provisions of Rule 21.01(2)(b). The plaintiff, however, appears to have filed evidence in the form of three affidavits, which are referred to in the index to the motion record for the Rule 21 motion. No objection was raised by the federal Crown. I presume that the plaintiff did not really intend to rely on evidence in respect of the Rule 21 motion because she filed precisely the same motion record on the Rule 20 motion for which evidence is permitted. The affidavits themselves are included only in the motion record for the Rule 20 motion. In any event, I cannot and will not consider any affidavit evidence in connection with the Rule 21 motion and will focus on the claims as pleaded, consistent with authority such as Lyskov v. Braley (2006), 2006 CanLII 11846 (ON CA), 79 O.R. (3d) 721 (C.A.).

[8] After a review of the claim and procedural history, these reasons are divided into two parts. I will deal first with the claim against the federal Crown, Rule 21.01(1)(b), the analysis and disposition. The second part will address the allegations against the provincial Crown, the evidence, Rule 20.01(3), the analysis and disposition.

Procedural History

[9] This action was commenced by statement of claim dated May 21, 2010. Both the provincial and federal Crowns were named as defendants. The claim was served shortly thereafter. However, the initial claim did not contain any allegations against the federal Crown. After being alerted to the possibility that the federal Crown would move to strike, an amended statement of claim dated May 31, 2011 was served. The amended claim is lengthy, some 33 pages containing 126 paragraphs.

[10] Unfortunately, the pleading contains a number of typographical, punctuation and spelling errors. Where possible, I have corrected the errors so that the pleading can be read more easily.

The Claim

[11] The plaintiff is a Band member of the Chippewas of the Thames First Nation and was a resident of the Antler River Seniors’ Housing Complex which, as already noted, is located on provincial land adjacent to the First Nation. The land was the subject of a prior land claim. The First Nation had ten years to purchase the land and apply to the Department of Indian & Northern Affairs to acquire reserve status for the land. However, at the time the housing development was built and occupied, the land was still registered under the Land Titles Act. It appears that there is no dispute that although the property was on provincial land, responsibility for law enforcement services rested with the Chippewas of the Thames First Nation police service.

[12] In November 2007, the plaintiff paid a deposit and signed a lease agreement with the First Nation governing the terms of her residency at the complex. The lease agreement incorporated the terms of the housing complex policy which stipulated that no animals were allowed in or around the housing complex.

[13] The plaintiff admits that she was aware of the prohibition on animals when she signed the lease agreement. Following the formation of a resident’s association, which voted in January 2008 in favour of residents being permitted to keep a small pet in their residence, the plaintiff moved her Yorkshire poodle from foster care into her home in the housing complex.

[14] In February 2008, the defendant Chief gave her notice that she in violation of the housing policy and that she would be evicted if she did not remove her dog from the premises.

[15] Following a notice of eviction and a failed application by the plaintiff to the Landlord and Tenant Board, the defendant Chief and Council notified the plaintiff in May 2009 that she was going to be charged with trespass. They also directed that the plaintiff’s utilities be cut off. The plaintiff alleges that the defendant Chief and Council embarked on a campaign of intimidation to induce her to leave the community.

[16] On or about May 22, 2009, the First Nation constables came to the plaintiff’s residence together with employees of the defendant Chief and Council to evict her from the housing complex. The plaintiff denied them entrance to her residence. She called 911 and requested that the defendant First Nation constables await the arrival of the Ontario Provincial Police. They refused. The plaintiff alleges that the constables used excessive force causing her emotional trauma. Ultimately, the plaintiff left her residence.

[17] The plaintiff alleges that the O.P.P. failed to come to her assistance, failed to provide her with reasons why they could not assist her and failed to inform her of the protocol with the Chippewas of the Thames Police Department. The plaintiff also claims that the defendant Chief in Council applied the housing policy in a discriminatory manner.

Ontario First Nations Policing Agreement

[18] The first First Nations Policing Agreement, 1991-1996 (the Agreement) is dated March 30, 1992. The Agreement was renewed from time to time and it appears that additional First Nations became signatories. The Agreement was renewed for the period April 1, 2009 to March 31, 2011 and it incorporated by reference the terms and conditions of the 1991-1996 Agreement.

[19] The Chippewas of the Thames First Nation is a party to the Agreement. In accordance with the terms of the Agreement, the Chippewa of the Thames First Nation implemented their own police service for their community. The Agreement is part of the pleading and is incorporated by express reference.

[20] The parties to the Agreement are Her Majesty the Queen in right of Canada as represented by the Minister of Public Safety and Emergency Preparedness; Her Majesty the Queen in right of the Province of Ontario as represented by the Minister of Community Safety and Correctional Services; and several First Nations communities in Ontario including the Chippewas of the Thames First Nation.

[21] As defined by the Agreement, the role of the federal Crown is to provide funding and perform audits. The federal Crown is obliged to reimburse the provincial Crown for 52% of the policing costs contemplated by the Agreement to a defined maximum amount.

[22] I see nothing in the Agreement that suggests that the federal Crown is involved in the day-to-day operations of First Nations Police Services. As a result, those remain the responsibility of the Band Council or the province of Ontario. As will be discussed below, the Agreement expressly states that its terms are not to be read or construed as conferring upon First Nations constables the status of officer, employee, servant or agent of Canada.

[23] Under the terms of the Agreement, a First Nations government may, by negotiated agreement with the federal and provincial Crowns, choose to have a First Nations Police Service, controlled by a First Nations police governing authority, operating on the First Nations territory. Pursuant to section 4(a)(iv) of the Agreement, the Chippewas of the Thames First Nation implemented a First Nations police service that is supplemented by the O.P.P.

[24] Paragraph 33(c) of the Agreement provides that the First Nations government is the employer of the First Nations constables.

[25] Section 25 of the Agreement provides that it shall be the duty of First Nations constables and the First Nations Police Service to keep the peace, prevent crime, enforce the law and seek to achieve the goals and objectives of the agreement.

[26] Section 30 of the Agreement provides that the O.P.P. shall provide all reasonable support to the First Nations Police Service upon the request of First Nations constables and that nothing in the Agreement shall prevent a police governing authority or First Nations government from requesting the assistance of the O.P.P.

The Allegations against the federal Crown

[27] The plaintiff claims damages against the federal Crown for $1 million on the following bases:

1. f) …negligence; failure to act on their legislative responsibility with respect to Indians and land reserved for Indians; failure to follow through with and identify guidelines for funding, audit and complaint processes under the Ontario First Nations Policing Agreement; failure to provide acceptable guidelines to deal with law enforcement issues which arise in areas where both First Nations and other police services exist in contiguous locations under the Ontario First Nations Policing Agreement; failure to inform First Nations members of said guidelines; and failure to make information regarding guidelines for law enforcement issues which arise in areas where both First Nations and other police services exist in contiguous locations publicly available; thereby resulting in a breach of their fiduciary duties…

[28] The allegations against the federal Crown are as follows:

15. The Crown in right of Canada is a party pursuant to section 3(b)(i)(ii) of the Crown Liability and Proceedings Act, R.S.C. 1985 c. C-50 for torts committed by its servants Public Safety Canada, Aboriginal Policy Directorate, and First Nations police services or breach of duty attaching to the ownership, occupation, possession or control of property.

16. The Government of Canada is one of three Parties to the Tripartite Agreement which sets out that that Canada, Chippewa of the Thames First Nation, and the Government of Ontario are equally joined in creation and execution of this Agreement…

17. Her Majesty the Queen in right of Canada has legislative responsibility for lands reserved for Indians by virtue of the Constitution Act of 1867 and 1962.

18. The Department of Indian Affairs, and more specifically, the Minister of Indian Affairs, is agent for Her Majesty the Queen in right of Canada by virtue of his ministerial position.

19. By evidence of his signature, the Minister of Indian Affairs on behalf of Canada accepts this role as signatory to the Ontario First Nations Policing Agreement.

20. Her Majesty the Queen in right of Canada and Her Majesty the Queen in right of the Province of Ontario jointly and severally failed to ensure that acceptable protocols to deal with law enforcement issues that may arise where both First Nations and other police services exist in contiguous locations were created; thereby breaching their legislative responsibilities.

21. In addition, Her Majesty the Queen in right of Canada and Her Majesty the Queen in right of the Province of Ontario jointly and severally failed to make publicly available the protocols which establishes how First Nations and other police services conduct themselves where they exist in contiguous locations; thereby breaching their legislative responsibilities; and in particular, policing matters in the Province of Ontario.

22. In addition, Her Majesty the Queen in right of Canada further failed to communicate said protocols to members of First Nations for which Her Majesty the Queen bears legislative responsibility, thereby breaching her fiduciary duties…

23. The defendant Chippewas of the Thames First Nations permission to allow persons to wander the complex was a nuisance that interfered with the plaintiff’s use and enjoyment of her residence and the common areas of the complex. The fact that the defendant Dwayne Kechego economic development officer began attending at the complex without notice and gained access to the building at 11:00 p.m. that was security locked to initiate the eviction process by shutting off the plaintiff’s utilities close to midnight instilled a sense of insecurity and fear in the plaintiff and heightened her anxiety. The plaintiff pleads that this nuisance originates from the defendant, Chippewa of the Thames First Nation Chief and Council, First Nations policing policy. The Crown in right of Canada is liable pursuant to section 3(b)(i) of the Crown Liability and Proceedings Act for the nuisance.

The Law Respecting Rule 21.01(1)(b)

[29] Rule 21.01(1) & (2) provide as follows:

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it disclosed no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

(2) No evidence is admissible on a motion,

(a) under clause (1)(a), except with leave of a judge or on consent of the parties;

(b) under clause (1)(b).

[30] The law respecting the application of Rule 21.01 is well developed and settled. The test is derived from the often cited Hunt v. T&N plc, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 and it is whether it is plain and obvious that the statement of claim does not disclose a reasonable cause of action, taking all of the facts pleaded as true. The claim must be read generously and with a forgiving eye for drafting deficiencies.

[31] Neither the length nor the complexity of the issues, the novelty of the cause of action or the potential for a strong defence should prevent a claim from proceeding.

Analysis

[32] The purpose of Rule 21.01(1)(b) is to test whether the facts as pleaded establish a “legally sufficient or substantively adequate claim”: Aristocrat Restaurants Limited v. Ontario, [2003] O.J. No. 5331 (S.C.J.). If the causes of action pleaded are not supportable at law, the claim should be struck out: Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24. A plaintiff is expected to plead clearly the material facts on which it relies to sustain the causes of action asserted in the claim: Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42. The plaintiff is not permitted to rely on the prospect that new facts may emerge as the case progresses.

[33] In this particular case, as I have already observed, the claim is 33 pages long containing more than 126 paragraphs. The amended claim, it must be said, sets out a rambling, prolix and disorganized narrative that does not comply with Rule 25.06(1) of the Rules of Civil Procedure which requires a concise statement of material facts on which the party relies. Moreover, a significant amount of evidence and argument is advanced.

[34] The court has consistently emphasized that the importance of pleadings should not be underestimated. A pleading that does not comply with the Rules of Civil Procedure is more likely to result in proceedings are inefficient, wasteful and unnecessarily costly to the parties, as well as the administration of justice: Knight v. Imperial Tobacco, supra.

[35] The function of pleadings has been characterized as follows:

(i) to define with clarity and precision, the question in controversy between the litigants;

(ii) to give fair notice of the precise case which must be met and the remedies sought;

(iii) to assist the court in determining the issues in the case;

(iv) to assist in defining the scope of discovery;

(v) to provide a permanent record of the issues raised for the purposes of res judicata and issue estoppel.

See Clarke v. Yorkton Securities Inc. (2003), 46 C.P.C. (5th) 294 (Ont. S.C.J.); Aristocrat Restaurants, supra.

[36] In this case, the obvious deficiencies in the claim make it difficult to discern the causes of action that are being advanced against the federal Crown. It appears that the plaintiff has set out conclusions of law without furnishing any of the underlying facts to substantiate a basis for liability on the part of the federal Crown.

Failure to Legislate/Breach of Fiduciary Duty

[37] I note that claims respecting a failure to act on legislative responsibilities with respect to Indians and lands reserved for Indians (paragraph 1(f)) and breach of fiduciary duties (paragraph 1(f)) are baldly pleaded. Nowhere in the following 30 plus pages of the claim is there any pleading of facts in connection with either of those claims.

[38] It is important to remember that liability does not attach for a purported failure to legislate: Burgess (Litigation Guardian of) v. Canadian National Railway (2005), 2005 CanLII 39687 (ON SC), 78 O.R. (3d) 209 (S.C.J.); Kwong v. R., 1978 ALTASCAD 403, [1978] A.J. No. 594 (C.A.); aff’d 1979 CanLII 239 (SCC), [1979] 2 S.C.R. 1010. In the Burgess case, the plaintiff was struck by a train at a double line crossing while walking her bicycle across the tracks. The plaintiff commenced an action against the federal Crown and others. The federal Crown was alleged to have failed to enact a regulation governing pedestrian safety at dual track crossings. The claim was struck. The court cited the Kwong decision in support of its decision as follows:

124 The allegations in paragraph 39(d) of the statement of claim do not found a cause of action against Canada for failure to enact a regulation governing pedestrian safety systems at dual track rail crossings such as the Glendale Avenue crossing. As was held in Kwong v. R., 1978 ALTASCAD 403, [1978] A.J. No. 594 (Alta. C.A.) affirmed 1979 CanLII 239 (SCC), [1979] 2 S.C.R. 1010 (S.C.C.), it is not a breach which is actionable at the instance of any member of the public. Kwong was a wrongful death action brought by the family of a man who died as a result of a leaking gas furnace. It was alleged that the province of Alberta, the statutory regulator, ought to have recognized the danger inherent in gas furnaces. Although it was conceded that that failure to pass regulations was not a justiciable issue, it was alleged that officials breached a duty owing to the public by failing to recommend that various warnings be issued with respect to gas furnaces. The issue for the Alberta Court of Appeal was summed up as follows:

…the question which requires answering, assuming officials in the Gas Protection Branch should have known of a danger which requires warning is – does their failure to advise the Minister to the end of getting appropriate regulations which would provide for warning, amount to a breach of duty which is actionable as far as members of the public are concerned?

125 After examining Anns and other cases involving the imposition of a duty of care, and having reviewed the governing statue, the Court of Appeal of Alberta stated at paragraph 50 and 53:

In the case at Bar the alleged negligence is the Department failing to take steps to protect, or at least to warn, the public of the potential for death or injury by operating a certain type of furnace with the fan-compartment door removed. In my view, while there is a public duty, and assuming a breach of it, it is not a breach which is actionable at the instance of any member of the public…

…Clearly, the Gas Protection Act gives rise to no cause of action for the failure of the Gas Protection Branch to do things or make regulations which, in hind-sight, may appear to be salutary.

[39] In order to establish a breach of fiduciary duty, a plaintiff must plead and prove an undertaking on the part of the fiduciary to act in the best interests of the plaintiff; the plaintiff’s vulnerability to the fiduciary’s control; and an interest that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control. The Elder Advocate’s decision is but one the many examples respecting the components of a breach of fiduciary duty. In Roberts v. R., 2002 SCC 79, [2002] 4 S.C.R. 245 the court made the following observation in the context of a claim by two First Nations against the federal Crown for breach of fiduciary duty:

83. I offer no comment about the correctness of the disposition of these particular cases on the facts, none of which are before us for decision, but I think it desirable for the Court to affirm the principle, already mentioned, that not all obligations existing between the parties to a fiduciary relationship are themselves fiduciary in nature (Lac Minerals, supra, at p. 597), and that this principle applies to the relationship between the Crown and aboriginal peoples. It is necessary, then, to focus on the particular obligation or interest that is the subject matter of the particular dispute and whether or not the Crown had assumed discretionary control in relation thereto sufficient to ground a fiduciary obligation…

84. I do not suggest that the existence of a public law duty necessarily excludes the creation of a fiduciary relationship. The latter, however, depends on identification of a cognizable Indian interest, and the Crown’s undertaking of discretionary control in relation thereto in a way that invokes responsibility “in the nature of a private law duty”, as discussed below.

[40] In this case, none of the constituent elements of a breach of fiduciary duty are pleaded in the sense of “a cognizable Indian interest and the Crown’s undertaking of discretionary control.”

[41] That, alone, is sufficient to dispose of the allegations respecting a failure to act on legislative responsibilities and a breach of fiduciary duties. It is plain and obvious that the statement of claim does not disclose a reasonable cause of action under either of those heads. An order permitting the plaintiff to amend her claim to remedy the failure to plead material facts will be of no practical assistance because those claims are doomed to failure in any event.

[42] I turn then to the other claims that are advanced and will deal with them sequentially.

Vicarious Liability

[43] The claim asserts that the federal Crown is liable for the actions of the defendant First Nations Constables (paragraph 15 of the amended claim). This allegation cannot succeed for two reasons. The first is that First Nations constables are not servants of the Crown. The second is that there are no material facts pleaded to establish that the federal government possessed the requisite degree of control over the actions of the First Nations constables.

[44] The Crown was historically immune from liability sounding in tort. That immunity was removed in respect of certain causes of action by the enactment of the Crown Liability and Proceedings Act, R.S.C. 1985 c. C-50. In particular, section 3(b)(i) of the Act provides that the Crown is liable for the damages which, if it were a person, it would be liable in respect of a tort committed by “a servant of the Crown”. In other words, the liability created is vicarious. As a prerequisite to a claim against the federal Crown founded in vicarious liability, the plaintiff must establish that the defendant First Nations constables were servants of the Crown. For the sake of completeness, I note that s. 3(b)(ii) does not apply. It creates liability in respect of “a breach of duty attaching to the ownership, occupation, possession or control of property”, which is not the case here.

[45] While engaged in law enforcement activities, police officers are independent of the executive and are not considered servants of the Crown: R. v. Schirose, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565. This case involved a consideration of the legality of police conduct in a “reverse sting” operation. Justice Binnie writing for the court noted that “[a] police officer investigating a crime is not acting as a government functionary or as an agent of anybody” at para. 27. In paras. 29 to 36, the court traces the history of police independence from the control of the executive government.

[46] It is notable that the Crown Liability and Proceedings Act contains a specific provision at s. 36, which deems members of the Royal Canadian Mounted Police to be servants of the Crown for the purposes of determining liability in any proceedings by or against the federal Crown. There is no parallel provision respecting First Nations constables or any other police force. Consequently, the only reasonable conclusion consistent with the common law is that the relationship between a police officer and the government is not that of servant and master. The defendant First Nations constables are accordingly not servants of the Crown under the Crown Liability and Proceedings Act.

[47] In order to establish a claim for vicarious liability, a plaintiff must demonstrate two things. The first is that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close to make the transfer of liability appropriate. The second is that the wrongful conduct is adequately connected to the risks authorized by or inherent in the enterprise of the employer or the controlling agent.

[48] The leading case on this issue is B.(K.L.) v. British Columbia, 2003 SCC 51. It involved a claim by four siblings against the provincial Crown for damages as a result of abuse they suffered while placed in foster homes. They alleged the Crown owed them a statutory duty of care; that the Crown was negligent in its assessment of the suitability of foster parents and in follow-up supervision; and for vicarious liability.

[49] The court concluded that the claim founded on vicarious liability must fail for want of a cause of action. The court discussed the principles governing vicarious liability, in this case of the provincial Crown for the torts of the foster parents. Those principles apply equally to this case.

[50] In order to attract vicarious liability, one must establish that the person being held liable had some ability to influence or prevent the tortious conduct. As a result, when individuals operate independently from day to day state control, the government cannot be held vicariously liable. The claim advanced by the plaintiff does not show that the federal Crown had any degree of control over day-to-day policing operations by the First Nations constables. Moreover, the regulatory scheme does not support such a conclusion. Pursuant to sections 54(1) and (2) of the Police Services Act, R.S.O. 1990, c. P.15, First Nations constables are appointed by the Commissioner of the O.P.P., subject to the approval of the Ontario Civilian Police Commission and the First Nations governing authority or band council.

[51] Pursuant to the terms of the Agreement, First Nations communities who are signatories have expressly undertaken to assume responsibility for the actions of their First Nations constables. Section 7.3 provides as follows:

Canada and Ontario shall not be held liable for any injury, including death to any person, or for any loss or damage to property of the Communities or for any obligation of the Communities or anyone else, incurred or suffered by the Communities or their employees, agents or voluntary workers in the performance of this Agreement. In recognition of this, the Communities save harmless Canada and Ontario, recognizing that Canada and Ontario shall not be responsible for any bodily or personal injury or property damage of any nature whatsoever that may be suffered or sustained by the Communities, their respective members, employees, officers, affiliates or agents in the performance of this Agreement.

[52] The Agreement also expressly states that First Nations constables are not servants of the Crown at s. 12.9 which reads:

Nothing in this Agreement shall be read or construed as conferring upon Ontario, its members, officers, employees, agents or contractors, the status of officer, employee, servant or agent of Canada. Nothing in this Agreement shall be read or construed as conferring upon the police officers providing policing services to the Communities, under the OFNPA or the Communities their members, officers, employees, agents or contractors, the status of officer, employee, servant or agent of Canada or Ontario…

[53] Accordingly, the allegations of vicarious liability cannot succeed and must be struck. Given the state of the law, permitting the plaintiff to amend her claim would be futile. The claim sounding in vicarious liability is doomed to failure. It plainly and obviously cannot succeed.

Direct Liability

[54] The claim makes somewhat vague references to the federal Crown’s alleged failure to either follow through with and identify guidelines for funding, audit and complaint processes under the agreement; or to provide acceptable guidelines to deal with law enforcement issues which arise in areas where both First Nations and other police services exist in contiguous locations under the Contribution Agreement and to make information regarding such guidelines publically available. See the amended statement of claim, paragraphs 1(f) and 29 to 31.

[55] The claim fails to plead any basis to ground a cause of action with respect to those allegations. One is left to conclude that the only possible basis for liability rests on a claim for negligence.

[56] It is well-settled and beyond dispute that in order for an action in negligence to succeed, the plaintiff must establish that:

• the defendant owed the plaintiff a duty of care;
• the defendant breached that duty of care;
• damages resulted from the breach; and
• the damage was caused by the breach.

[57] This is an axiomatic statement of the law that scarcely requires the citation of authority but for the sake of completeness, Mustapha v. Culligan, 2008 SCC 27, [2008] 2 S.C.R. 114 is ample support for that proposition.

[58] The question arises here, therefore, whether a duty of care exists between the federal Crown and the plaintiff.

[59] The first step in the analysis is to determine whether the facts of this case bring the plaintiff and the defendant within a category of relationship that previous jurisprudence has found to establish a duty of care: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537 and Knight v. Imperial Tobacco, supra. In other words, does the relationship fall within a settled category that gives rise to a duty of care? If so, a prima facie duty of care is established. If not, the analysis proceeds to a two-stage analysis which involves a consideration of proximity and foreseeability and a determination whether there are sound policy reasons why the duty of care ought not to be recognized: Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129.

[60] As a preliminary matter, it appears from the claim that the duty said to arise on the facts of this case is a duty to identify guidelines for funding, audit and complaint processes, and a duty to provide guidelines that deal with law enforcement boundaries. The claim does not fall within a recognized category that gives rise to a duty of care. Indeed, it appears to fall within a recognized category of immunity.

[61] In Elder Advocates of Alberta Society, supra, the Supreme Court of Canada ruled that the provincial government does not owe a duty of care with respect to “auditing, supervising, monitoring and administering” a health care benefit. Chief Justice McLachlin, writing for a unanimous court states as follows:

In the absence of a statutory duty, the fact that Alberta may have audited, supervised, monitored and generally administered the accommodation fees objected to, does not create sufficient proximity to impose a prima facie duty of care. Those functions have been left to the discretion of the government by virtue of the regulatory scheme.

[62] Further, there is no duty to the plaintiff to conduct or implement funding, audit or complaint processes. In the absence of a positive duty to act, the law of negligence cannot be used to convert a permissive power into a legal obligation: Eliopoulos v. Ontario (Minister of Health and Long-Term Care) (2006), 2006 CanLII 37121 (ON CA), 82 O.R. (3d) 321 (C.A.) and as Madam Justice Lang observed in Attis v. Canada (Minister of Health), 2008 ONCA 660, leave to appeal refused [2008] S.C.C.A. No. 491, “[h]aving the means to enforce compliance does not translate into an obligation to do so.” This, it seems to me, establishes conclusively that no sufficient proximate relationship is established on the facts and no duty to legislate exists.

[63] With respect to the alleged duty to provide guidelines that deal with law enforcement boundaries, it appears that the plaintiff alleges that the federal Crown owed the plaintiff a duty to legislate. There are several references to the federal Crown having breached its legislative responsibilities at paragraphs 1(f), 29 and 30 of the claim.

[64] The difficulty with this contention is that it is well established that tort law does not impose a duty on the government to regulate or to legislate in any particular field. Authority for this proposition is found in Burgess, supra, and Lucas v. Toronto Police Services Board (2001), 48 W.C.B. (2d) 393 (Ont. S.C.J.) and the cases to which reference is made in the decisions.

[65] Furthermore, it is arguable that because First Nations constables are appointed by the provincial Crown pursuant to section 54 of the Police Services Act, any legislative initiative by the federal government would infringe upon a provincially regulated activity and would be ultra vires as a result.

[66] It is true that the Agreement provides that the parties will communicate with police services to “exhort” them to prepare guidelines aimed at the coordination of First Nations and other police activities in neighbouring jurisdictions. Section 27 provides:

The relevant Parties hereto shall communicate with federal, provincial, regional, municipal, and First Nations police services to exhort them to prepare mutually acceptable guidelines to deal with law enforcement issues which may arise in areas where both First Nations and other police services exist in contiguous localities, with a view to ensuring a high degree of cooperation among police services involved in keeping the peace, preventing crime and enforcing the law. In particular, a copy of this Agreement shall be sent to each such police service.

[67] A similar claim was rejected by the Court of Appeal in Eliopoulos, supra where the plaintiff had alleged that the Ontario government’s undertaking to encourage coordination among public health authorities gave rise to a private law duty of care. That is the same type of argument or allegation that seems to be advanced here and cannot be sustained. On these bases alone, the claim in negligence is plainly and obviously not tenable.

[68] For the sake of completeness, I will deal with the analysis whether a duty of care exists in circumstances where no prior jurisprudence has suggested that a duty of care exists. As already noted, in order to do so, one must apply the two-stage test derived from the House of Lords’ decision in Anns v. Merton London Borough Council as articulated in Cooper v. Hobart, supra. See also Hill, supra. The inquiry is as follows:

1. At the first stage of the inquiry, the question is whether the requirements of reasonable foreseeability and proximity have been met. Two parties are proximate if their relationship is sufficiently “close and direct” that is fair to require that the defendant be mindful of the plaintiff’s legitimate interests;

2. If this examination leads to the prima facie conclusion that a duty of care exists, the inquiry turns on whether residual policy reasons, transcending the relationship between the parties, militate against the imposition of a duty of care.

[69] A proximate relationship between an individual and a government authority may be established in one of two ways, either by statute or by specific interactions between the government and a plaintiff.

[70] In this particular case, the relevant statute is the Department of Public Safety and Emergency Preparedness Act¸ S.C. 2005, c. 10. Section 4 sets out the powers of the Minister to oversee and to ensure public safety and emergency preparedness in Canada. The authority to enter into the Policing Agreement derives from section 6(1)(c) of the Act. It provides as follows:

6(1) in exercising his or her powers and in performing his or her duties and functions and with due regard to the powers conferred on the provinces and territories, the Minister may…(c) make grants or contributions…

[71] It is apparent that the legislation confers broad discretionary powers that are targeted at public rather than private interests. The case law is replete with cases that establish that statutory duties or powers aimed at the public good do not establish a sufficient nexus between a government authority and an individual claimant. But two examples are Wellington v. Ontario 2011 ONCA 274 and Imperial Tobacco, supra.

[72] The plaintiff does not plead that she had any direct interaction with the federal Crown. Moreover, the claim does not plead that the federal Crown had any involvement in the day-to-day conduct or supervision of the First Nations constables. As a result, this case bears considerable resemblance to Odhavji Estate v. Woodhouse, 2003 SCC 69.

[73] In that case, the Supreme Court of Canada rejected a claim against the Toronto Police Services Board and the Province of Ontario. The plaintiffs had alleged that the defendants breached their duties to ensure that police officers cooperated with an investigation being conducted by the Special Investigations Unit. Justice Iacobucci for the court concluded that the province was “too far removed from the day-to-day operations of the police force” sufficient to establish a proximate relationship between the province and members of the public injured as a result of police misconduct.

[74] The same analysis applies here. Given the federal Crown had no involvement in the day-to-day operations of the police force, no proximate relationship is established. It is plain and obvious that such a claim would fail.

[75] Finally, even if the plaintiff could overcome the hurdles identified above, it is necessary to consider whether policy considerations militate against the legal recognition of these duties. Without doubt, the decisions in issue here are purely policy decisions – in other words “a course or principle of action adopted or proposed by a government” as set out Imperial Tobacco, supra. The assessment of whether to fund audit activities involves questions of budget allocation. The development of policies to address law enforcement boundaries involves issues of jurisdiction between different levels of government. In my view, it would be inappropriate and impermissible to impose a private law duty of care that exposes the government to liability if it chooses, as a matter of policy or public interest, not to act in the circumstances.

[76] For all of these reasons, I am satisfied that it is plain and obvious the statement of claim does not disclose a reasonable cause of action on the basis of negligence. And, for the same reason already identified, the motion to amend the claim would not result in a cure of these deficiencies. In other words, the claim is fatally flawed and cannot be remedied.

Nuisance

[77] The plaintiff’s claim in nuisance is contained at paragraph 99 of the statement of claim. There are no material facts pleaded that would establish federal Crown responsibility for the allegedly tortious conduct of the defendant Chippewas of the Thames First Nation in allowing its economic development officer to enter the complex. The statement of claim plainly and obviously does not disclose a reasonable cause of action against the federal Crown in nuisance and the pleading must be struck.

[78] Accordingly, the entire claim as pleaded against the federal Crown is struck without leave to amend.

The Allegations against the provincial Crown

[79] The plaintiff claims damages against the provincial Crown for $1 million for negligence on the following bases:

1. e) damages against the Queen in Right of Ontario specifically the Ontario Provincial Police in the sum of $1,000,000 for negligence; failure to identify and provide the protocol for response between Chippewas of the Thames First Nation and other police services under the Ontario First Nations Policing Agreement; failure to inform First Nations members of said guidelines; and failure to make information regarding guidelines for law enforcement issues which arise in areas where both First Nations and other police services exist in contiguous locations publically available; breach of duties attaching to the occupation, possession or control of property herein described;

2. The Crown in right of Ontario is a party pursuant to s. 59(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, for torts committed by its servants, the Minister of Community Safety and Correctional Services, the Attorney General of Ontario, and Ontario Provincial Police (hereinafter referred to as O.P.P.) officers and in respect of a breach of duties attaching to occupation, possession or control of property herein described.

[80] After reciting the details of the plaintiff’s interaction with the Chief and Council and their alleged employees or agents in relation to her eviction, the plaintiff alleges the following:

59. The plaintiff was threatened and extremely frightened for her safety. She called 911 expecting the O.P.P. to arrive to assist her. She pleaded with Defendant Constable Dan Riley to wait for the O.P.P. telling them that they were on their way.

60. The plaintiff was relying on the arrival of the O.P.P. to protect her from threat of physical harm. The plaintiff was terrified and, in a panic, put a chair under the doorknob to stall the defendants Sgt. Dan Riley, Constables Keith Riley and Brian French’s entry long enough for the O.P.P. to arrive…

61. On or about the end of March 2009, the plaintiff made contact with the Strathroy-Caradoc Police Services, Sgt. Mark Campbell, informing him of her circumstances, her fear and that she was having problems at her residence. The plaintiff was requested to write to the Chief of Police outlining her concerns.

62. On or about April 4, 2009, the plaintiff wrote to Chief Beazley and hand-delivered the letter to the Strathroy-Caradoc Police Services on Frances Street in Strathroy.

63. The plaintiff received a call from Constable Steve Palmer of the Strathroy-Caradoc Police Services in response to her letter.[^1] During the period from April 4, 2009 to May 7, 2009, the plaintiff had a number of discussions with Constable Palmer regarding her circumstances. Constable Palmer made it clear to the plaintiff that if she needed the police they would come and should any representatives of the defendant Chippewas of the Thames First Nation come to change her locks, that she should keep her doors locked and call 911.

64. The Strathroy-Caradoc Police Services as represented by Constable Steve Palmer promised the plaintiff that the police or O.P.P. would come if she called. The plaintiff was not informed that there was any reason why the police or O.P.P. would not come to assist her.

65. On or about May 7, 2009, the plaintiff called Constable Steve Palmer of the Strathroy-Caradoc Police Services alleging that she had received a letter from the defendant Chippewas of the First Nation that they were coming to evict her and to change her locks. Constable Steve Palmer informed the plaintiff that after taking a second look at the matter, due to their boundaries, the Strathroy-Caradoc Police Services could not assist her.

O.P.P. lack of response

74. On or about May 22, 2009, the plaintiff, while under siege by the defendant Sgt. Dan Riley, Keith Riley and Brian French, placed a call to the 911 emergency number and expressed her fear to the dispatch operator regarding the threats by the defendant Sgt. Dan Riley and Constables Keith Riley and Brian French to evict her.

75. The plaintiff requested that the 911 emergency dispatch operator call the O.P.P. to assist her. The plaintiff informed the defendants Sgt. Dan Riley, and Constables Keith Riley and Brian French to wait before proceeding to evict her until the O.P.P. arrived and that the O.P.P. were on their way.

76. The O.P.P. never came to her assistance and never provided her with a reason or explained to her why they would or could not attend to assist her.

77. The O.P.P. never informed the plaintiff that they were subject to the protocol pursuant to the Ontario First Nations Policing Agreement which prohibited them from attending on the territory of the Chippewas of the Thames First Nation to assist her nor did they explain this was the reason why they could not attend to assist her. The plaintiff has been emotionally traumatized by the lack of attendance, by the O.P.P.’s refusal to assist her and their refusal to explain why. She seeks damages as against them.

78. When the plaintiff was leaving the reserve, she noted three O.P.P. cruisers sitting approximately one-quarter mile up the road at the Nimkee Centre. She inquired why they did not come to assist her. The O.P.P. merely informed her that she was on reserve. The O.P.P. officers did not explain their comment. The plaintiff did not understand the nature or implication of the comment. The attitude displayed by the O.P.P. was nonchalant and mocking with regard to the plaintiff’s recent eviction experience. The plaintiff informed the O.P.P. that she expected them to come to assist her by keeping the peace and stopping the Chippewas of the Thames First Nation police from breaking down her door and throwing her out of her home.

79. The plaintiff subsequently learned that the four O.P.P. officers that she encountered at the Nimkee Centre were Sgt. D. Fisher, Constables J. Veilleux, J. Reid and K. Dilks.

80. The plaintiff has been denied a reasonable explanation as to why the O.P.P. failed to assist her and she has lost trust in the agency.

81. The plaintiff waited 50 years to finally have the opportunity to return to reside in her own community to only leave in disgrace and humiliation arising out of a policing system that the O.P.P. failed to explain to her. The plaintiff is seeking damages against the O.P.P. for failure to act by not requesting entry onto the Chippewa of the Thames First Nation to keep the peace and come to her assistance.

O.P.P. Duties

82. Section 42 of the Police Services Act set out the duties of the O.P.P. which are:

a. preserving the peace;

b. preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;

c. assisting victims of crime;

d. apprehending criminals and other offenders and others who may lawfully be taken into custody;

e. laying charges and participating in prosecutions;

f. executing warrants that are to be executed by police officers and performing related duties;

g. performing the lawful duties that the chief of police assigns; and

h. in the case of a municipal police force and in case of an agreement under section 10 (agreement for provision of police services by O.P.P.), enforcing municipal by-laws.

83. The O.P.P. have the duty to preserve the peace. They have the jurisdiction to enter onto reserve lands and at minimum when the plaintiff sought their assistance they could have explained the arrangement they have with the Chippewas of the Thames First Nation in the area of policing. Their failure to fulfill their duty to preserve the peace caused the plaintiff unnecessary pain, trauma and suffering

84. The excessive unnecessary conduct of the defendant Chippewas of the Thames First Nation Constables Dan Riley, Keith Riley and Brian French could have been minimized by the O.P.P. yet they failed to intervene between the defendant constables and the plaintiff, a petite 58-year-old woman and an eight pound pet.

85. Failure to intervene by the O.P.P. resulted in the plaintiff being banished on a permanent basis from visiting her mother at the Senior’s complex.

86. The plaintiff called the Strathroy O.P.P. informing Steve Palmer on April 4, 2009 and May 7, 2009 that she lived in fear for her personal safety and for her personal property and belongings which she feared would be destroyed by the defendants, Chippewas of the Thames First Nation Constables, Dan Riley, Keith Riley and Brian French.

87. The plaintiff pleads that the harm suffered by her and the conduct to which the plaintiff was subjected as described in the preceding paragraphs were foreseeable and within the reasonable contemplation by the O.P.P.

O.P.P. Failure to Inform

88. The O.P.P. knew or ought to have known when the plaintiff wrote informing them in April of the escalating circumstances between her and the defendant Chippewas of the Thames First Nation Constables and defendant Chief and Council, that she was in a potentially dangerous situation, yet they took no steps to intervene, investigate or prevent it by informing the plaintiff of their protocol with the defendant Chief and Council, and/or Chippewas of the Thames First Nation police.

89. Had the plaintiff been aware of the protocol arrangement she would have been better able to take steps to deal with her circumstances rather than assume she could get assistance from an off reserve police force. The O.P.P. failed to provide the plaintiff with the knowledge to better assist herself or obtain assistance from them or an alternate agency such as the R.C.M.P.

90. The O.P.P. were aware of the potential for harm and damages to the plaintiff from the date she wrote to the O.P.P. in Strathroy in April 2009. Yet, the O.P.P. in Strathroy misled her into thinking they would attend when she called.

91. The plaintiff pleads that the O.P.P. owed her a duty to inform her about the protocol with the Chippewas of the Thames First Nation constable. The O.P.P. despite telling her they would come if she called, refused to when she did. The plaintiff pleads that the O.P.P. owed her a duty to preserve the peace which by failing to do caused her harm and damages. By failing to inform the plaintiff of their protocol the O.P.P. had breached their duty to protect and failed to protect the plaintiff from the consequences of the failure to inform.

Failure of the O.P.P. to Act

92. The fact that the O.P.P. were not taking necessary steps to attempt to prevent the plaintiff from having a confrontation with the Chippewas of the Thames First Nation Constables, Dan Riley, Keith Riley and Brian French left the plaintiff living in the complex in fear for her personal safety and the safety of her property and gave substance to the threats being received by the plaintiff by the defendant Chippewas of the Thames First Nation. The plaintiff's fear of the threats left her subject to the intimidating and harassing conduct of the defendant Chippewas of the Thames First Nation Chief and Council.

O.P.P. Breach of Duties

93. The plaintiff pleads that the aforementioned conduct of the defendant Chippewas of the Thames First Nation was known to the O.P.P. and it was known that it was threatening to the plaintiff. The O.P.P. refused to inform the plaintiff of their protocol with the defendant Chippewas of the Thames First Nation Chief and Council.

94. The plaintiff had written and called the O.P.P. to obtain their assistance and to prevent the harassing, intimidating conduct, however, the O.P.P. either refused to attend at the property at all or have attended at the property but have failed or refused to provide any assistance to the plaintiff and perform their duties under the Police Services Act, or failed to respond in a timely and effective manner leaving the plaintiff without assistance.

95. As a result of the conduct of the defendant Chippewas of the Thames First Nation Chief and Council and defendants, Chippewas of the Thames First Nation Constables, Dan Riley, Keith Riley and Brian French and the failure of the defendant O.P.P.’s failure to preserve the peace and inform the plaintiff, she has suffered mental distress and psychological harm, intimidation and harassment as pleaded above. The plaintiff has experienced nightmares of the brutal invasion such that she suffers from sleep deprivation which has affected her health. The plaintiff’s experience has also caused her extreme paranoia. The conduct by the defendant Chippewas of the Thames First Nation to evict her led her to believe that their employees were spying on her and intended to harm her such that she became terrorized and fearful for her safety and security when she heard guns firing nearby or found rocks on her lawn or clicking her telephone that she believed to have been illegal surveillance devices.

96. The defendant O.P.P., by failing to protect and inform interfered with the plaintiff’s sense of security. The failure to preserve the peace left the plaintiff vulnerable to emotional distress and anxiety. The Crown in right of Ontario is liable pursuant to s. (1)(c) of the Proceedings against the Crown Act for the emotional distress and anxiety.

97. The defendant O.P.P. have by deciding not to assist the plaintiff failed to enforce the laws of the Province of Ontario and the plaintiff pleads that the O.P.P. have not exercised their discretion but have abdicated their responsibilities and duties.

98. The damages suffered by the plaintiff are a direct and foreseeable consequence of the failure on the part of the O.P.P. to carry out their duties pursuant to the Police Services Act.

Jurisdictional Issues

111. It remains unclear which jurisdiction, federal or provincial, governs the Agreement signed between the plaintiff and the defendant Chief and Council. The lands on which the Antler River Seniors Housing complex was built were not, at the time of the eviction, reserve lands. The plaintiff was only aware of the eviction procedure pursuant to the Provincial Residential Tenancies Act and in the alternative, relies on the statute for wrongful eviction.

The Evidence

[81] The provincial Crown has filed the affidavit of Pat Morris who is an inspector in the Aboriginal Policing Bureau with the O.P.P. and is responsible for the management of the Agreement.

[82] The plaintiff has filed an affidavit from Terran Fisher, another resident of the complex, dated October 17, 2013 and one of the same date from her mother Yvonne Conley, also a resident. She has also filed her own affidavit dated January 16, 2014 but it does not appear to be responsive to the issues raised on the summary judgment motion. Rather, it is an affidavit sworn in support of her earlier motion setting aside an order for dismissal for delay.

[83] Mr. Morris has deposed that the Chippewas of the Thames Police Service is the primary service provider within the Chippewas of the Thames First Nation. Any 911 calls from the Chippewas’ jurisdiction are routed to the central emergency reporting bureau in North Bay. The Middlesex O.P.P. and the Chippewas of the Thames Police Service are on the same radio channel. However, any calls for service are answered by on-duty Chippewas of the Thames First Nation constables.

[84] The O.P.P. will not respond to a service call where First Nations constables are on duty. The O.P.P. acts as a supplement to the primary First Nations Police Service providers and will assist the First Nation Policing Services when requested by it.

[85] In this case, at no time were any requests made by the Chippewas of the Thames Police Service for any O.P.P. assistance with respect to any dealings or interactions with the plaintiff.

[86] The affidavits of Terran Fisher and Yvonne Conley describe interactions between the plaintiff and band council and the First Nation officers but do not address the claim against the provincial Crown.

[87] For example, Ms. Conley has only deposed that the O.P.P. “never came” but there is no evidence they were summoned. The Fisher affidavit refers to an interaction between the plaintiff and an officer said to be with the O.P.P. but it does not seem to relate to the pleading.

The Law Respecting Rule 20

[88] The law respecting the court’s powers under Rule 20 has been clarified by virtue of the Supreme Court of Canada’s guidance in Hryniak v. Mauldin, 2014 SCC 7, 2014 S.C.C. 7.

[89] It is helpful to set out the text of the rule before discussing the court’s decision.

20.04

(2) The court shall grant summary judgment if,

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

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

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent

3. Drawing any reasonable inference from the evidence

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[90] The court outlined when summary judgment can be granted:

[49] There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[91] The overarching issue to be answered is “whether summary judgment will provide a fair and just adjudication” [para. 50]. The court went on to say at para. 50 that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” [Emphasis mine.]

[92] The powers available under Rules 20.04(2.1) and (2.2) are presumptively available. They only become unavailable where it is in the interest of justice for such powers to be exercised only at trial. The court noted at para. 56: “[t]he interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.”

[93] The motion judge must engage in a comparison between the advantages of proceeding by way of summary judgment versus proceeding by way of trial. Such a comparison may include an examination of the relative cost and speed of each medium, as well as the evidence that is to be presented and the opportunity afforded by each medium to properly examine it. The court noted that, “when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so.” However, the inquiry must go further, and must also consider the consequences of the motion in the context of the litigation as a whole.

[94] The court suggested at para. 66 the following process to guide the motion judge’s approach:

1. The judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-findings powers.

2. There will be no genuine issue requiring trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.

3. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).

4. She may, at her discretion, use those powers unless it is against the interest of justice to do so. It will not be against the interest of justice if use of the powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[95] It is still the case that the motions judge is entitled to assume that s/he has all of the evidence that would be available at trial. The responding party must “lead trump” or risk losing.

[96] With this foundation, I turn the analysis.

Analysis

[97] The provincial Crown submits that the Chippewas of the Thames Police Service has jurisdiction over the area on which the housing complex is located. It is the local force that responds to requests for assistance and conducts investigations. It frames the issues as follows:

(i) Does the claim disclose a genuine issue requiring a trial?

(ii) In particular, is there a private law duty of care between the O.P.P. and the plaintiff?

(iii) Did the provincial Crown cause the harm alleged by the plaintiff?

[98] It is clear that the plaintiff’s claim against the provincial Crown is framed entirely in negligence. As already noted, in order to succeed she must demonstrate the following:

1. that the provincial Crown owed her a duty of care;

2. it breached the standard of care;

3. she has suffered damage; and

4. the damage was caused by the breach.

[99] The statutory scheme that governs the O.P.P.’s responsibilities with respect to policing is found in the Police Services Act, R.S.O. 1990, c. P. 15, s. 42(1). They include the following:

• preserving the peace;
• preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;
• assisting victims of crime;
• apprehending criminals and other offenders and others who may lawfully be taken into custody;
• laying charges and participating in prosecutions;
• executing warrants that are to be executed by police officers and performing related duties; and
• performing the lawful duties that the chief of police assigns.

[100] The Act does not prescribe how police are to carry out their statutory duties. It has been recognized that officers have considerable discretion in the discharge of their obligations: Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council, 2006 CanLII 41649 (ON CA), [2006] O.J. No. 4790 (C.A.). In that case, the court noted:

113 Our courts have long recognized that the effectiveness of our justice system depends on the police’s operational discretion in investigating and enforcing violations of the law and the Crown’s discretion in prosecuting these violations. Apart from instances of flagrant impropriety or civil actions for malicious prosecution, courts should not interfere with either police or prosecutorial discretion. See R. v. Beare (1988), 1988 CanLII 126 (SCC), 45 C.C.C. (3d) 57 (S.C.C.); R. v. Power (1994), 1994 CanLII 126 (SCC), 89 C.C.C. (3d) 1 (S.C.C.); and Krieger v. Law Society (Alberta), 2002 SCC 65, [2002] 3 S.C.R. 372.

114 There are cogent reasons why the courts ordinarily have no business interfering with or questioning how the police and the Crown exercise their discretion. Respect for the separation of powers and the rule of law depend on the courts not interfering.

[101] I have already reviewed some of the relevant authorities on the issue of whether the federal Crown owes the plaintiff a private duty of care and need not repeat them here in connection with the provincial Crown. Accordingly, the first step is to determine whether a duty of care has been previously recognized.

[102] As a general proposition, no private law duty of care arises where the purpose of the relevant legislation is to facilitate what the public authority considers to be in the best interests of the public. When the legislative scheme establishes general duties to the public as a whole and not to individual members of the public, the necessary level of proximity is not established: Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562.

[103] While there is no doubt that pursuant to the Police Services Act, police owe a duty to the public to investigate and prevent crime, the issue is whether a private duty is owed to individual members of the public. With few exceptions, the cases appears to establish that the answer is no. See, for example, Norris v. Gatien et al (2001), 2001 CanLII 2486 (ON CA), 56 O.R. (3d) 441 (C.A.); Fockler v. Toronto (City), [2007] O.J. No. 11 (S.C.J.) and Project 360 Investments Ltd. v. Toronto Police Services Board, 2009 CanLII 36380 (ON SC), [2009] O.J. No. 2473 (S.C.J.). As noted in the Project 360 decision by MacDonnell J. “the general relationship between the police and individual members of the public has not been recognized as one in which a private law duty of care arises.”

[104] As I have said, there are exceptions, which are fact driven. None of the exceptions assist the plaintiff.

[105] Moldaver J. (as he then was) noted in Doe v. Metropolitan, Toronto (Municipality) Commissioners of Police, 1990 CanLII 6611 (ON SC), [1990] O.J. No. 1584 (Div. Ct.) the following:

14. For the most part, the police are free to go about their task of detecting and apprehending criminals without fear of being sued by individual members of society who have been victimized. The reason for this is simple. While the police owe certain duties to the public at large, they cannot be expected to owe a private law duty of care to every member of society who might be at risk.

15 Foreseeability of risk alone is not sufficient to impose a private law duty of care. See Hill v. Chief Constable of West Yorkshire, [1989] 1 A.C. 53, [1998] 2 All E.R. 238 (H.L.).

21. The law is clear that in certain circumstances, the police have a duty to warn citizens of foreseeable harm. See Schact v. R., 1972 CanLII 41 (ON CA), [1973] 1 O.R. 221, 30 D.L.R. (3d) 641 (C.A.), aff’d sub nom. O’Rourke v. Schact, 1974 CanLII 28 (SCC), [1976] 1 S.C.R. 53, 55 D.L.R. (3d) 96, 3 N.R. 453, and Beutler v. Beutler; Adams v. Beutler (1983), 26 C.C.L.T. 229 (Ont. H.C.J.). The obvious purpose of the warning is to protect the citizens.

[106] In the Doe case, the court refused to strike a claim that alleged that the police failed to warn the plaintiff of a serial rapist at large in her neighbourhood. Ultimately, her claim was tried and she recovered damages after she was assaulted by the rapist. See Jane Doe v. Toronto (Metropolitan) Commissioners of Police, 1998 CanLII 14826 (ON SC), [1998] O.J. No. 2681 (Gen. Div.).

[107] However, in this case, the plaintiff does not allege a failure to warn. Rather, she claims that the O.P.P. failed to intervene when she was being evicted by the Chippewa defendants.

[108] Another case in which a private law duty of care was found to exist was in Hill, supra, where the court noted as follows:

Other factors relating to the relationship suggest sufficient proximity to support a cause of action. The relationship between the police and a suspect identified for investigation is personal, and is close and direct. We are not concerned with the universe of all potential suspects. The police had identified Hill as a particularized suspect at the relevant time and begun to investigate him. This created a close and direct relationship between the police and Hill. He was no longer merely one person in a pool of potential suspects. He had been singled out. The relationship is thus closer than in Cooper and Edwards. In those cases, the public officials were not acting in relation to the claimant (as the police did here) but in relation to a third party (i.e. persons being regulated) who, at a further remove, interacted with the claimants. [Emphasis added.]

[109] It is clear that this decision was founded on a finding of sufficient proximity. This decision is to be contrasted with the decision in Patrong v. Banks, [2013] O.J. No. 4360 (S.C.J.). In that case, the court struck a claim brought by the victim of a drive-by shooting against the Toronto Police Services Board. The plaintiff alleged that the police owed him a duty of care because they were aware that the shooter was dangerous and he intended to shoot young black males of rival gangs in the victim’s neighbourhood. The plaintiff alleged that there was special relationship of proximity between the police and him because he was part of a narrow and identifiable group of the shooter’s potential victims.

[110] The court held that the police did not have the requisite knowledge of the victim to establish a special relationship of proximity. It found that all neighbourhood residents were at a risk of foreseeable harm and the victim was not readily known to the police as a specific target. The plaintiff was unable to distinguish himself from the general public in order to sufficiently establish proximity.

[111] In my view, there is nothing on the facts of this case that establish a relationship of proximity in order to found a private law duty of care. As in Patrong, the plaintiff is unable to distinguish herself from the general public. The enabling legislation does not do so. It is true that part of the plaintiff’s pleading recites the provisions of s. 42 of the Police Services Act. However, the mere pleading cannot convert those statutory duties into a private law duty of care.

[112] Nor is there evidence of direct interactions with the O.P.P. that might attract a finding of proximity or at least raise a genuine issue requiring a trial. The pleading refers to the plaintiff’s communications with the Strathroy-Caradoc Police Services (see paras. 71, 72, 73, 75, 78, 88 and 90 of the claim). The latter police service is a municipal police force that is completely independent of the O.P.P. Constable Steve Palmer is not an employee of the provincial Crown. There is no evidence that the O.P.P. was aware of the plaintiff’s situation or that a request for assistance was made by her or the First Nations Policing Service. Clearly, the representations allegedly made by a member of the municipal police force cannot bind the provincial Crown.

[113] I would add that there are also sound policy reasons why a private law duty of care should not be imposed. Probably one of the most compelling reasons is that the First Nations Policing Agreement was created to protect and respect the autonomy of First Nations communities.

[114] One, if not the primary goal of the First Nations Policing Agreement is to provide First Nations in Ontario through the financial support of the provincial and federal Crowns, an effective and efficient policing service which is culturally sensitive and appropriate for First Nations communities. The First Nations policing services operate independently from the O.P.P. and the O.P.P. will only become involved if they are requested to do so. Mr. Morris has deposed that the O.P.P. received no such request. His evidence is uncontroverted. Nor do those allegations respecting a failure to identify a protocol and a failure to inform First Nations members of such a protocol raise a genuine issue for trial for the same reasons given in respect of the similar claims advanced against the federal Crown.

[115] For these reasons, I am satisfied that summary judgment dismissing the claim against the provincial Crown should be granted.

[116] I encourage the parties to resolve the issue of costs. If they cannot, I will receive brief written submissions not exceeding five pages (exclusive of the bill of costs) from the federal and provincial Crowns by May 15, 2015 and the plaintiff by May 29, 2015.

“Justice H.A. Rady”

Released: April 24, 2015 Justice H. A. Rady

[^1]: In the original statement of claim, Constable Steve Palmer is identified as a member of the Strathroy O.P.P.