Smith v. Her Majesty the Queen in Right of Ontario et al.
[Indexed as: Smith v. Ontario]
Ontario Reports Ontario Superior Court of Justice, Marrocco A.C.J.S.C. May 10, 2017 138 O.R. (3d) 105 | 2017 ONSC 2854
Case Summary
Torts — Negligence — Duty of care — Plaintiff unsuccessfully prosecuted for murder — Plaintiff suing police who investigated him and Crown attorneys involved in investigation — Police defendants cross-claiming against Crown attorneys for indemnity based on negligent legal advice — Motion judge declining to strike cross-claim for indemnity — Leave to appeal granted — Motion judge failing to consider policy reasons for not recognizing duty of care — Reason existing to doubt correctness of order.
The plaintiff was unsuccessfully prosecuted for murder. He sued the police who investigated him and the two Crown attorneys involved in the investigation for negligent investigation, unlawful arrest and imprisonment and intentional infliction of mental suffering. He also sued the Attorney General of Ontario based on vicarious liability for the acts and omissions of the two Crown attorneys. The police defendants cross-claimed against the Crown defendants for contribution and indemnity. The motion judge found that the plaintiff's claim against the Crown defendants should be dismissed because it was foreclosed by the law of prosecutorial immunity. She struck the cross-claim for contribution because it required a viable claim against the Crown defendants, but permitted the cross-claim for immunity based on negligent advice to go forward. The Crown defendants moved for leave to appeal.
Held, leave to appeal should be granted.
The nature of the relationship between the police and the Crown prosecutor was a legal issue of general importance beyond the interests of the parties. The motion judge failed to consider whether there were policy reasons for not recognizing a duty of care on the part of Crown attorneys to the police. Accordingly, there was reason to doubt the correctness of the order.
Cases referred to
- Nelles v. Ontario, [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86, 60 D.L.R. (4th) 609, 98 N.R. 321, J.E. 89-1206, 35 O.A.C. 161, 41 Admin. L.R. 1, 49 C.C.L.T. 217, 37 C.P.C. (2d) 1, 71 C.R. (3d) 358, 42 C.R.R. 1, EYB 1989-67463, 16 A.C.W.S. (3d) 318
- R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42, 308 B.C.A.C. 1, 419 N.R. 1, 2011EXP-2380, J.E. 2011-1326, 335 D.L.R. (4th) 513, 21 B.C.L.R. (5th) 215, 25 Admin. L.R. (5th) 1, 86 C.C.L.T. (3d) 1, [2011] 11 W.W.R. 215, 83 C.B.R. (5th) 169, 205 A.C.W.S. (3d) 92
- Smith v. Ontario, [2016] O.J. No. 6163, 2016 ONSC 7222, 368 C.R.R. (2d) 322, 34 C.C.L.T. (4th) 298, 275 A.C.W.S. (3d) 770 (S.C.J.)
Statutes referred to
- Canadian Charter of Rights and Freedoms
Rules and regulations referred to
Motion for Leave to Appeal
Counsel: Kevin McGivney, for York Regional Police Services Board and YRP #1. Sunil Mathai and Heather Burnett, for defendants/moving parties Attorney General of Ontario, Michael Hill and John Scott. C. Kirk Boggs and Stuart Zacharias, for defendants/responding parties Durham Regional Police Services Board, Leon Lynch, John Johnson Allan, Cindi Bradley, Daniel Anthony Denyer, Jim Burrows, Jeff Kennedy, David Kimmerly and Dianne Jennings.
Endorsement of MARROCCO A.C.J.S.C.:
[1] Leave to appeal is granted.
[2] This is a motion for leave to appeal an order made by Matheson J. dated November 29, 2016 (Smith v. Ontario, [2016] O.J. No. 6163, 2016 ONSC 7222 (S.C.J.)) in which she dismissed, in part, a motion by defendants/moving parties to strike the cross-claim brought against them by the defendants/responding parties.
[3] The plaintiff was unsuccessfully prosecuted for murder.
[4] He then sued the police who investigated him and the two Crown attorneys involved in that investigation for negligent investigation, unlawful arrest and imprisonment and intentional infliction of mental suffering. He also sued the Attorney General of Ontario claiming the Attorney General was liable for the acts and omissions of the two Crown attorneys.
[5] The plaintiff did not sue the Crown attorneys who prosecuted him. So, there is no claim for malicious prosecution.
[6] The statement of claim also alleges breaches of the Canadian Charter of Rights and Freedoms. Those allegations were not before the motion judge.
[7] The Attorney General of Ontario and the two Crown attorneys moved to strike out the plaintiff's claim. They also moved to strike out a cross-claim brought against them by the Durham Regional Police Services Board, Leon Lynch, John Johnson Allan, Cindi Bradley, Daniel Anthony Denyer, Jim Burrows, Jeff Kennedy, David Kimmerly and Diane Jennings ("DRPS"), seeking contribution and indemnity if its defence was unsuccessful.
[8] I agree with the motion judge that for the purposes of the motion to strike out the cross-claim, the facts alleged in the cross-claim, including those incorporated by reference from the statement of defence, are assumed true. [page107]
[9] The motion judge determined that the plaintiff's claim against the Crown attorneys and against the Attorney General should be dismissed because the law of prosecutorial immunity foreclosed it. The motion judge also determined that the DRPS claim for contribution was struck because it required a viable claim against the moving parties and there was no longer such a claim.
The Cross-Claim for Indemnity
[10] The motion judge allowed the cross-claim for indemnity to continue. Her Honour observed, at paras. 136 and 138: "[t]he extensive body of law about common law immunity simply does not focus on lawsuits by the police against Crown attorneys . . . there is not a recognized dispositive defence that justifies striking out the crossclaim at the pleadings stage".
[11] Rule 62.02(4)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states that leave to appeal from an interlocutory order of a judge shall not be granted unless
62.02(4)(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[12] The extent and application of prosecutorial immunity is a legal issue of general importance beyond the interests of these litigants.
[13] There is good reason to doubt the correctness of the motion judge's order continuing the cross-claim for indemnity. In making that statement, I am attempting to apply the test for leave to appeal set out in the Rules of Civil Procedure. The motion judge's decision is meticulous. Nothing I am going to say was lost on the motion judge, but that does not change the legal principles at play here.
[14] As the motion judge acknowledged, at para. 112, the functional approach to prosecutorial immunity was rejected in Nelles v. Ontario, [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86, at p. 189 S.C.R. Specifically, Lamer J. (as he then was) stated:
. . . to decide the scope of immunity on the basis of categorization of functions is an unprincipled approach that obscures the central issue namely whether the prosecutor has acted maliciously. If immunity is to be qualified it should be done in a manner other than by drawing of lines between quasi-judicial and other prosecutorial functions.
[15] Deciding that the scope of immunity might be different depending on who the plaintiff is arguably applies a functional approach to deciding the scope of prosecutorial immunity. [page108]
[16] If prosecutorial immunity applies to the cross-claim for indemnity, the cross-claim is hopeless.
The Duty of Care Issue
[17] The motion judge concluded, at para. 173, that "it is not plain and obvious on this Rule 21(1)(b) motion that there is no duty of care owed by Crown Attorneys to the police in regard to negligent legal advice in this case". As a result, the motion judge did not strike the portion of the cross-claim seeking indemnification based on negligent legal advice.
[18] The nature of the relationship between the police and the Crown prosecutor is a legal issue of general importance beyond the interests of these litigants. The importance of this issue was recognized by the motion judge, at para. 172: "[t]he submissions . . . have raised important issues regarding the relationship between the police and Crown Attorneys, including policy issues". In addition, it is obvious that Crown prosecutors and police work together on every serious criminal case and therefore the legal relationship between them is important.
[19] In deciding whether a duty of care could be found, the motion judge applied the Cooper-Anns test which Her Honour described, at para. 141, as the test to determine whether "a private law duty of care is owed in a particular category of relationship".
[20] The parties accepted that the claim made by the police against the Crown attorneys based on negligent legal advice was novel. The motion judge agreed.
[21] When a claim is novel, the Cooper-Anns test has two parts. The first part asks whether a prima facie duty of care arises. The second part asks whether there are policy reasons why the prima facie duty of care should not be recognized: see R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42, at para. 39.
[22] The motion judge indicates, at para. 169, that the parties did not squarely address in the argument before her the important issue of "how would the availability of tort claim for negligent legal advice interfere with the relationship between [the Crown prosecutor and the police, as] two important parts of the criminal justice system . . . perhaps because the moving parties were mainly relying on an immunity defence". Arguably, this had to be fully explored before the motion judge, because if there were policy reasons for not recognizing a duty of care, then the Cooper-Anns test required Her Honour to conclude there was no duty of care. [page109]
[23] If no duty of care exists, the negligence portion of the cross-claim is hopeless.
[24] Accordingly, there is reason to doubt the correctness of the order. Leave to appeal is granted with respect to paras. 4 and 6 of the order of the motion judge.
Leave to appeal granted.
End of Document