Clark v. Ontario (Attorney General), 2017 ONSC 3683

CITATION: Clark v. Ontario (Attorney General), 2017 ONSC 3683

COURT FILE NO.: CV-16-555292

DATE: 20170613

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMIE CLARK, DONALD BELANGER and STEVEN WATTS

Plaintiffs/Responding Parties

– and –

ATTORNEY GENERAL OF ONTARIO

Defendant/Moving Party

Michael W. Lacy and Lorne Honickman, for the Plaintiffs/Responding Parties

Heather Mackay and Ananthan Sinnadurai, for the Defendant/Moving Party

HEARD at Toronto: February 21 and 22, 2017

REASONS FOR Decision

Stinson J.

I - Introduction

[1] Three Toronto police officers – Jamie Clark, Donald Belanger, and Steven Watts (the plaintiffs, or officers) – have sued the Attorney General of Ontario (the defendant, or AG) alleging that it is liable to them for negligence and misfeasance in public office. The AG has brought a motion to strike their claim under rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] In 2009, the plaintiffs arrested and obtained statements from Neil Singh and Randy Maharaj in connection with a complaint of armed robbery and forcible confinement. Both men were charged with the offences and later claimed that the plaintiffs assaulted them during the arrest. The trial Crown Attorney stayed the proceedings against Mr. Maharaj and proceeded to trial against Mr. Singh, obtaining a conviction from a jury. After trial, Mr. Singh brought a Charter application seeking to stay the proceedings against him on the grounds that the plaintiffs had assaulted him. The trial judge found that the officers had assaulted Mr. Singh, but decided that a reduced sentence was the appropriate remedy. Mr. Singh appealed and the Court of Appeal upheld the assault finding and found that it warranted a stay of proceedings rather than a reduced sentence. Both the trial and appeal decisions contain language that is highly critical of the officers’ conduct.

[3] The plaintiffs allege that the trial and appeal Crown Attorneys failed to pursue and put before the court available evidence that contradicted the assault claims of the accused. The plaintiffs claim that the Crown Attorneys’ actions and omissions contributed to the trial and appeal courts’ assault findings, which caused irreparable harm to the plaintiffs’ reputations in violation of a duty of care owed by the Crown Attorneys to them. The plaintiffs’ negligence claim is a novel claim.

[4] The AG’s motion to strike the officers’ claim is based on the grounds that the claim is statute-barred by the expiry of the limitation period, the negligence claim discloses no reasonable cause of action, and the misfeasance in public office claim is not properly pleaded. The hearing of this motion was bifurcated to deal with the limitations issue first. In a decision dated January 4, 2017, I found that it was not plain and obvious that the limitations issue will be decided against the plaintiffs and declined to strike the claim on that ground: Clark v. Ontario (Attorney General), 2017 ONSC 43. These reasons address the issues of whether the plaintiffs’ claim as pleaded discloses a reasonable cause of action in negligence and whether the misfeasance in public office claim is properly pleaded.

II - The facts alleged in the statement of claim

[5] The following facts are alleged in the plaintiffs’ statement of claim and, for the purposes of this motion to strike, are assumed to be true.

(a) The arrests and preliminary hearing

[6] On June 11, 2009, the officers arrested Mr. Singh and Mr. Maharaj in connection with a complaint of armed robbery and forcible confinement. Mr. Singh provided an exculpatory statement to the police and Mr. Maharaj provided a confession. At the preliminary hearing for Mr. Singh and Mr. Maharaj, the preliminary hearing Crown Attorney (whose conduct is not at issue in this action) called the officers as witnesses. Mr. Maharaj’s counsel questioned the officers about the assault allegations and they denied them. Mr. Singh and Mr. Maharaj were committed to stand trial.

(b) Mr. Maharaj’s stay of proceedings

[7] Assistant Crown Attorney Sheila Cressman had carriage of the prosecution leading up to and at the trial. Prior to the trial, Mr. Maharaj brought an application to exclude his confession and stay the proceedings on the ground that the police had assaulted him and caused a rib injury. His counsel provided Ms. Cressman with x-rays of the affected area and the bail hearing transcript. Ms. Cressman spoke with Dr. Farley Moss at the hospital where Mr. Maharaj was treated, who confirmed it was possible he sustained the injuries on the day of the arrest.

[8] According to the plaintiffs, Ms. Cressman could have but did not take certain additional steps to investigate Mr. Maharaj’s assault claims. These include: asking Dr. Moss to review Mr. Maharaj’s videotaped statement, in which he moves his arms; asking Dr. Moss about other time periods in which the injury could have occurred; making inquiries at the Maplehurst Correctional Complex (where Mr. Maharaj was incarcerated pending trial) which had no record of complaints about a rib injury; properly reviewing the bail hearing transcript for inconsistencies between then and the stay application; and seeking further comment from the officers, who denied the assault.

[9] Ms. Cressman consulted with senior Crown Attorney Frank Armstrong about Mr. Maharaj’s statement and they concluded it would not be admissible. On November 22, 2011, Mr. Armstrong stayed the charges against Mr. Maharaj.

[10] The plaintiffs include these and other allegations about Mr. Maharaj’s claims because he testified as part of Mr. Singh’s Charter application, thereby supporting the assault findings. The Court of Appeal also referred to Mr. Maharaj’s assault claims as “relevant for the light they shed upon the pattern of conduct of the police officers involved”: R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253, at para. 26.

(c) Mr. Singh’s trial and application for stay of proceedings

[11] The trial against Mr. Singh began on November 28, 2011 at the Ontario Superior Court before Thorburn J. A jury convicted Mr. Singh of armed robbery with a firearm and forcible confinement. After trial, Mr. Singh’s lawyer brought a motion to stay the conviction based on the alleged assault by police. Both Mr. Singh and Mr. Maharaj testified on the motion. Mr. Maharaj testified that he was assaulted by Det. Sgt. Belanger and Sgt. Clark. Mr. Singh testified that he was assaulted by Sgt. Clark while Det. Sgt. Watts stood by. The plaintiffs claim that the testimony of Mr. Singh and Mr. Maharaj was false.

[12] Ms. Cressman did not call evidence to respond to the assault allegations. The Crown’s position was that whatever happened to Mr. Singh was not as severe as he suggested, but it met the low threshold to establish a Charter breach. Ms. Cressman argued that a reduced sentence, rather than stay of proceedings, would be an appropriate remedy. According to the statement of claim, Ms. Cressman knew they had testified at the preliminary hearing that they did not assault the accused and would testify again to that effect. Ms. Cressman advised Det. Sgt. Watts that he and the other officers would be called as witnesses, then later advised them their testimony would not be needed. The plaintiffs note they were not party to these proceedings and, according to the Crown’s understanding, did not have standing to tender evidence or make submissions.

[13] On March 28, 2012, Thorburn J. dismissed Mr. Singh’s stay application but found that Mr. Singh’s evidence was not contradicted and, because of the assault, a reduced sentence would be appropriate: R. v. Singh, 2012 ONSC 4429. Justice Thorburn’s decision was highly critical of the officers’ conduct, describing it as “reprehensible”. The officers claim that their reputations were irreparably harmed because the ruling was widely reported in the media and discussed by Crown Attorneys, the criminal defence bar, and the judiciary.

(d) After the trial

[14] The Crown Law Office – Criminal advised the Toronto chief of police of its concerns about the officers. The Special Investigations Unit (SIU) was notified and invoked its mandate. Mr. Maharaj declined to participate in the investigation and the SIU withdrew its mandate.

[15] The Toronto Police Service Professional Standards Unit (PSU) then reviewed the allegations and conducted an extensive investigation. The PSU found that the allegations of use of excessive force “could not be substantiated”.

[16] The plaintiffs claim that the Crown was notified of these reports around November 2012 but did not take any action in response.

(e) Mr. Singh’s appeal

[17] Mr. Singh appealed both his conviction and sentence. Before the appeal was heard, Det. Sgt. Watts met with the appellate Crown counsel Amy Alyea and advised her of the PSU report and what the officers learned about Ms. Cressman’s conduct of the trial. The plaintiffs claim that Ms. Alyea: took no further investigatory steps; took no steps to repair the damage to the officers’ reputations; and did not file a fresh evidence application at the Court of Appeal.

[18] According to the plaintiffs, one of the Justices on the appeal panel asked Ms. Alyea about what happened, but she did not inform them about Ms. Cressman’s conduct and the “exculpatory findings” regarding the police. The plaintiffs claim that the Crown was negligently or deliberately protecting its own agents rather than upholding its responsibilities to the officers and to the administration of justice.

[19] On December 12, 2013, the Court of Appeal set aside the conviction, finding that Mr. Singh was a victim of “egregious conduct” by the police: R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253. It described the interrogation techniques as “calculated, prolonged and skillfully choreographed”. The Court stated that evidence of police misconduct was not contradicted or contested by the Crown. The plaintiffs claim that this finding resulted from the Crown’s failure to inform the Court of the “new material facts” showing that Mr. Maharaj and Mr. Singh “most certainly fabricated the allegations.” The officers claim that the appeal decision was also widely reported in the media and discussed by Crown Attorneys, the criminal defence bar, and the judiciary.

(f) After the appeal

[20] After the appeal, the SIU reopened its investigation, interviewed Mr. Maharaj, reviewed all the records—including the videotaped statement—and found that his allegations were not substantiated by the evidence.

[21] On May 26, 2014, the Toronto chief of police asked the Ontario Provincial Police (OPP) to independently review the PSU’s review. In a report dated April 9, 2015, the OPP investigator found there was no reason to refute the PSU’s conclusion that the allegations could not be substantiated.

III - The test for rule 21.01(1)(b) motions – whether the claim discloses a reasonable cause of action

[22] Rule 21.01(1)(b) of the Rules of Civil Procedure provides that “[a] party may move before a judge, […] (b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence”. The test on a motion to strike under rule 21.01(1)(b) is: “assuming that the facts as stated in the statement of claim can be proved, is it ‘plain and obvious’ that the plaintiff’s statement of claim discloses no reasonable cause of action?”: Hunt v. T & N plc, [1990] 2 S.C.R. 959 (at para. 36).

[23] In assessing whether it is plain and obvious that a claim discloses no reasonable cause of action, all facts pleaded in the claim are accepted as true “unless they are manifestly incapable of being proven” (including because they are based on assumptions and speculation) or “patently ridiculous”: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 (at para. 22); see also Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441 (at para. 27); Paton Estate v. Ontario Lottery and Gaming Corp., 2016 ONCA 458, 349 O.A.C. 106 (at para. 12). A statement of claim may fail to disclose a reasonable cause of action if the allegations pleaded do not give rise to a recognized cause of action, or if it fails to plead the necessary elements of a recognized cause of action: see Aristocrat Restaurants Ltd. v. Ontario, [2003] O.J. No. 5331 (at para. 18) (S.C.).

(a) The effect of the novelty of the claim and competing policy considerations

[24] Although the test on a motion to strike is clear, the parties disagree on the principles applicable to this motion in two respects. One is the effect of the novelty of the negligence claim and the other is whether and when policy questions can be decided on a motion to strike. These two issues are related.

[25] The plaintiffs submit that courts should err on the side of allowing novel claims to proceed. In particular, they say that a full factual record is required to properly assess the policy issues raised by their claim. The AG submits that, while the negligence claim may be novel, it can and should be dismissed at this stage because Crown Attorney civil immunity is or should be absolute with the sole exceptions of malicious prosecution and intentional non-disclosure claims brought by former accused parties. Otherwise, if this Court does conduct an “Anns test” analysis (see Anns v. Merton London Borough Council, [1978] A.C. 728 (U.K.H.L.)), the AG says that the same policy concerns identified in the malicious prosecution and intentional non-disclosure case law can be applied to negate the proposed duty of care in the present case without the need for either party to adduce evidence at a summary judgment hearing or trial.

[26] I will briefly consider these issues.

[27] First, the case law is clear that the novelty of a claim is “not determinative” on a motion to strike: Imperial Tobacco (at para. 21). A claim should not be struck solely for its novelty, but it seems equally clear that a claim does not get a “free pass” to proceed because of its novelty. In Imperial Tobacco (at para. 21), the Supreme Court directed that, for novel claims:

The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

IV - Issues

[31] I note that one procedural issue arose at the hearing when the AG sought to refer to Ms. Cressman’s conduct at trial as evidenced in a transcript of the proceedings. While the AG argued that the transcript was incorporated by reference into the statement of claim, I ruled that it was evidence that was not admissible on this motion to strike pursuant to rule 21.01(2)(b) of the Rules of Civil Procedure.

[32] The AG’s motion to strike raises the following three issues:

(1) Do Crown Attorneys have absolute immunity from civil claims other than claims for malicious prosecution and intentional non-disclosure? What is the present scope of Crown Attorney civil liability?

(2) Is it plain and obvious that the officers’ negligence claim against the AG fails to disclose a reasonable cause of action? Should the court impose a private law duty of care?

(3) Does the officers’ claim for misfeasance in public office as pleaded assert the necessary legal elements of that cause of action?

[33] I will consider these issues in turn.

(1) Do Crown Attorneys have absolute immunity from civil claims other than claims for malicious prosecution and intentional non-disclosure? What is the present scope of Crown Attorney civil liability?

(a) The parties’ positions on this issue

[34] To date, the only torts recognized by the case law as available against Crown Attorneys are claims for malicious prosecution and for intentional failure to disclose exculpatory evidence. The AG submits that Crown Attorneys otherwise enjoy immunity against all other civil claims or, at the very least, against civil claims that do not allege malice or intent.

[35] While the existing case law, discussed below, focuses on Crown Attorney civil liability to accused persons, the AG submits that the analysis in such cases, particularly reasons for limiting the scope of liability, also applies in the present case. In particular, the AG submits that the officers’ proposed negligence cause of action should not be recognized because it would divert Crown Attorneys from their duties and lead to a chilling effect on prosecutorial decision-making. The AG says that Crown Attorneys should not have to consider factors extraneous to their primary duties of determining whether there is a reasonable prospect of conviction, determining whether it is in the public interest to prosecute, and ensuring the rights of the accused are protected.

[36] According to the officers, the existing case law has only addressed the civil liability of Crown Attorneys to aggrieved accused persons. They cite Matheson J.’s decision in Smith v. Ontario, 2016 ONSC 7222, in which she held that it was not plain and obvious that Crown Attorneys do not owe a duty of care to police regarding the provision of negligent legal advice.At this stage, no new tort has so far been definitively recognized or rejected in that case, either on a hearing on the merits or on appeal. Leave to appeal the decision of Matheson J. to the Divisional Court has recently been granted in that case: see 2017 ONSC 2854.

[37] The officers say that the reasons underlying the Supreme Court’s expansion of civil liability for Crown Attorneys to include malicious prosecution and intentional non-disclosure claims, rather than setting the boundaries of liability, support a further extension of liability in the present circumstances. Their allegations of negligence and misfeasance in public office do not go to “core” prosecutorial discretion. Core prosecutorial discretion does not protect actions of Crown Attorneys that conflict with their duties, undermine the administration of justice, and cause irremediable harm to third parties. Imposing a duty of care would improve public confidence in the office of the Crown prosecutor and ensure that significant harm does not go unremedied. In any event, the AG’s policy concerns are speculative and should not be determined at the pleadings stage.

(b) Analysis

[38] The parties’ main disagreement on this issue is whether the existing case law broadly delineates the scope of Crown Attorney civil liability to exclude all civil claims other than malicious prosecution and intentional non-disclosure (or at least all civil claims other than those alleging malice or intent), or whether it is more narrowly applicable to only the relationship between Crown Attorneys and accused (or former accused) persons. If the former position is correct, then this motion to strike should be granted without further analysis. If the latter, then it would be necessary to proceed to an “Anns test” analysis to determine whether it is plain and obvious that the plaintiffs’ negligence claim discloses no reasonable cause of action.

[39] In short, I have reviewed the case law and agree with Matheson J.’s observations in Smith v. Ontario (at para. 136) that “[t]he extensive body of law about common law immunity simply does not focus on lawsuits by the police against Crown Attorneys” and (at para. 138) that “the common law immunity grounded in the trilogy and related cases has been recognized only within the context of civil claims by members of the public.”

[40] The existing case law focuses on the duties owed by Crown Attorneys to accused persons. The cases also set out broader principles that are applicable to Crown Attorney civil liability more generally. That said, for the reasons that follow, in my view it is not plain and obvious that the existing case law on Crown Attorney civil liability definitively bars all claims by all persons against Crown Attorneys other than claims by former accused persons for malicious prosecution or intentional non-disclosure. Instead, since I do not find that the existing case law is dispositive, I find it necessary to review it to identify generally applicable principles that will assist in the “Anns test” analysis later in these reasons.

(i) The malicious prosecution trilogy

Nelles v. Ontario (SCC, 1989)

[41] The old common law rule in Ontario was that Crown Attorneys had absolute immunity from civil claims. In Nelles v. Ontario, [1989] 2 S.C.R. 170, the Supreme Court considered whether the common law tort of malicious prosecution, which was available against private citizens bringing criminal prosecutions, should extend to Crown Attorneys. The main issue (at para. 6) was “whether the Attorney General and his agents, the Crown Attorneys, are absolutely immune from civil liability in a suit for malicious prosecution.” The Supreme Court changed the law and held that, while the liability of the AG and Crown Attorneys should be strictly limited, a narrow exception to absolute immunity for the tort of malicious prosecution was warranted.

[42] Lamer J. set out the four required elements of the tort of malicious prosecution (at para. 42): “(a) the proceedings must have been initiated by the defendant; (b) the proceedings must have terminated in favour of the plaintiff; (c) the absence of reasonable and probable cause; (d) malice, or a primary purpose other than that of carrying the law into effect.” Lamer J. observed that a plaintiff bringing such a claim “has no easy task.” Against a Crown Attorney, the plaintiff must prove (at para. 55):

an improper purpose or motive, a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve and, as such, incorporates an abuse of the office of the Attorney General and his agents the Crown Attorneys.

[43] Lamer J. was of the view (at para. 55) that “the issue of prosecutorial immunity […] ultimately boils down to a question of policy.” One argument in favour of absolute immunity was that it encouraged public trust and confidence in the impartiality of prosecutors, but he wrote (at para. 49) that public confidence “suffers greatly” when prosecutors are shielded from liability for abusing the process. He further wrote (at para. 50) that the “fundamental” flaw with absolute immunity was that “the wrongdoer cannot be held accountable by the victim through the legal process.”

[44] Another policy argument in favour of absolute immunity was that it protected against a “chilling effect” on prosecutors’ decision-making. However, Lamer J. found that the chilling effect argument was largely speculative and that the requirement for proof of improper motive or purpose, coupled with civil procedure rules to “weed out meritless claims”, would prevent a “flood-gates” problem. Finally, he commented that alternative remedies such as criminal proceedings or professional disciplinary proceedings against a Crown Attorney were important but could not adequately remedy the wrong done to a plaintiff.

[45] The Nelles court made clear that the tort of malicious prosecution against Crown Attorneys is (at para. 55) not about “errors in judgment or discretion or even professional negligence”; malice must be proved.

Proulx v. Quebec (Attorney General) (SCC, 2001)

[46] The second major Supreme Court decision on malicious prosecution was Proulx v. Quebec (Attorney General), 2001 SCC 66, 206 D.L.R. (4th) 1. Proulx did not change the law, but is noteworthy for clearly affirming Nelles and finding that malicious prosecution was made out on the facts.

[47] In Proulx, the prosecutor initially concluded there was insufficient evidence to charge the appellant with the murder of his former girlfriend. A few years later, the prosecutor revived the investigation when someone claiming to be an eyewitness came forward after hearing a radio story about the murder. The appellant had sued the radio station and a retired police investigator who worked on the case for defamation for the story linking him with the murder. The prosecutor invited the retired police investigator to assist on the reopened file despite his conflict of interest and he charged the appellant with first-degree murder. The appellant was convicted by a jury and the conviction was overturned on appeal.

[48] Iacobucci and Binnie JJ. wrote (at para. 38) that “no Prosecutor acting in good faith would have proceeded to trial on a first degree murder charge with such substandard and incomplete proof.” The events leading up to the charges being laid demonstrated (at para. 43) “the importance of the Prosecutor's duty not to allow the criminal process to be used as a vehicle to serve other ends, in this case the ends of [the] journalist and the retired police investigator] in attempting to defend against the appellant's defamation action.” They found that (at para. 43) the prosecutor “lent his office to a defence strategy in the defamation suits and, in so doing, was compromised by [the retired police investigator’s] manipulation of the evidence and the irregularities that took place during the 1991 investigation process.”

[49] The Proulx Court also reaffirmed (at para. 35) that “a suit for malicious prosecution must be based on more than recklessness or gross negligence”.

Miazga v. Kvello Estate (SCC, 2009)

[50] The third decision in the Supreme Court’s malicious prosecution trilogy is Miazga v. Kvello Estate, 2009 SCC 51, 313 D.L.R. (4th) 330 in which the Court clarified the third and fourth requirements of the test. The Court held that malice cannot be inferred from a Crown Attorney’s decision to proceed with a prosecution in the absence of reasonable and probable cause; malice must be established by proof of an “improper purpose.”

[51] In Miazga, the respondent foster parents had been charged with sexual abuse against children in their care. After the foster parents were committed to stand trial, the appellant Crown Attorney stayed the proceedings. The children later recanted their allegations. The respondents then brought a claim for malicious prosecution and were successful at trial and on appeal on the basis that absence of reasonable and probable grounds supported a finding of malice. The Supreme Court disagreed and held (at para. 81):

[A] demonstrable “improper purpose” is the key to maintaining the balance struck in Nelles between the need to ensure that the Attorney General and Crown prosecutors will not be hindered in the proper execution of their important public duties and the need to provide a remedy to individuals who have been wrongly and maliciously prosecuted. By requiring proof of an improper purpose, the malice element of the tort of malicious prosecution ensures that liability will not be imposed in cases where a prosecutor proceeds, absent reasonable and probable grounds by reason of incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence.

[52] This means (at para. 89) that a “plaintiff must demonstrate on the totality of the evidence that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General or the process of criminal justice such that he or she exceeded the boundaries of the office of the Attorney General.”

(ii) Intentional non-disclosure of exculpatory evidence

[53] The most recent expansion of Crown Attorney civil liability occurred in Henry v. British Columbia, 2015 SCC 24, 383 D.L.R. (4th) 383. The Supreme Court recognized a new constitutional tort of intentional non-disclosure of exculpatory evidence by prosecutors.

[54] The appellant Ivan Henry was wrongfully convicted of 10 sexual offences and imprisoned for almost 27 years. He brought a civil claim against the Crown for failing to comply with its Charter disclosure obligations. The issue was: can a court of competent jurisdiction award s. 24(1) Charter damages, at para. 30, “for prosecutorial misconduct absent proof of malice?”

[55] The Attorneys General argued in Henry (at para. 52) that “the balancing of policy factors in Nelles – which led this Court to establish a qualified immunity shielding prosecutors from tort liability absent a showing of malice is also dispositive here.” All members of the Court disagreed. Moldaver J. wrote (at para. 59) that a malice or “‘improper purpose’ inquiry is apt when the impugned conduct is a highly discretionary decision to initiate or continue a prosecution because discretionary decision-making can best be evaluated by reference to the decision-maker’s motives.” However, disclosure is a constitutional obligation of prosecutors and “the decision to disclose relevant information is not discretionary.”

[56] Of particular relevance for the present case, Moldaver J. stated (at para. 76) that:

the policy concerns raised in the malicious prosecution trilogy are not confined to the exercise of core prosecutorial discretion. In my view, those concerns have a broader reach and are implicated wherever there is a risk of undue interference with the ability of prosecutors to freely carry out their duties in furtherance of the administration of justice.

[57] Moldaver J. focused on two policy concerns in particular. The first was “diversion from duties”. If the liability threshold was too low, Crown Attorneys might spend too much time (at para. 72) “responding to lawsuits rather than doing their jobs.” Canadians are best served “when Crown counsel are able to focus on their primary responsibility – the fair and effective prosecution of crime.” The second concern was the “chilling effect on Crown Counsel”. Fear of civil liability might lead to defensive lawyering, including disclosure decisions based on fear of liability rather than legal principle. Moldaver J. wrote (at para. 73) that “[t]he public interest is undermined when prosecutorial decision-making is influenced by considerations extraneous to the Crown’s role as quasi-judicial officer.”

[58] The Henry Court set the standard for an action for Charter damages for non-disclosure as follows (at para. 31):

a cause of action will lie where the Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence.

[59] This standard is lower than malice but higher than negligence. Moldaver J. was of the view that setting the standard at negligence or gross negligence would ignore (at para. 92) “the basic realities of conducting a criminal prosecution” and (at para. 93) risk “opening up a Pandora’s box of potential liability theories.” He wrote (at para. 94) that “[t]he lower the threshold, the greater the number of claims that would have to be defended.”

(iii) Other decisions on Crown Attorney civil liability

[60] The parties cite a number of motion and provincial appellate decisions regarding the scope of Crown Attorney immunity and the availability of negligence claims against Crown Attorneys. Several preliminary motions have been decided on the basis that there is no Crown Attorney civil liability for negligence, but some decisions have held that it is not a settled area of law and Crown Attorneys are not necessarily immune from negligence claims. I will not recite the facts of each case; it is sufficient to say that they all deal with civil claims by accused (or former accused) persons against Crown Attorneys.

[61] In Thompson v. Ontario (1998), 113 O.A.C. 82 (Ont. C.A.), Osborne J.A. wrote (at para. 56) that “Nelles qualified the Crown's common law immunity from suit only to the extent of permitting actions for malicious prosecution, but not for negligence. Thus, the appellant's claims against the Crown attorneys generally based on negligence in the performance of their duties disclose no reasonable cause of action.”

[62] In Miguna v. Ontario (Attorney General) (2005), 205 O.A.C. 257 (Ont. C.A.), Blair J.A. stated (at para. 11):

Whether that narrow exception is confined to the tort known as "malicious prosecution" is not clear from the authorities. But one thing is clear: however the claim is framed, the Crown's conduct must rise to the level of malice. […] No action lies against a Crown Attorney for prosecutorial misconduct that sounds in negligence.

[63] Blair J.A. made similar comments in Gilbert v. Gilkinson (2005), 205 O.A.C. 188 (Ont. C.A.) (at para. 7) leave to appeal refused [2006] S.C.C.A. No. 67, which was released on the same day as Miguna.

[64] I note that the Court of Appeal decisions in Miguna and Gilbert leave open the possibility that Crown Attorneys may be subject to civil liability for torts other than malicious prosecution and intentional non-disclosure, but only where malice or intent is alleged. The decisions also state that Crown Attorneys are not open to negligence claims for “prosecutorial misconduct”, at least not by accused persons. The Smith decision by Matheson J. suggests that it is less clear whether any bar on negligence claims extends to claims by other persons, including police officers. As noted by Matheson J. in Smith, this question has never been expressly considered by the courts. The analysis in Miguna and Gilbert, and similar cases, has focused on claims by accused persons.

[65] The AG also raises several other cases where a Master or motions judge similarly struck claims on the basis of the limited scope of Crown Attorney civil liability: see Baltovich v. Ontario (Attorney General), 2014 ONSC 6991 (at paras. 35-37); Brummell v. Ontario (Attorney General), 2014 ONSC 486 (at paras. 47-48 & 52-53), aff’d 2014 ONCA 828; Ciavarella v. Schwartz, 2014 ONSC 5061 (at paras. 2 & 22); Fragomeni v. Greater Sudbury Police Service, 2015 ONSC 3985 (at paras. 80-82).

[66] One Ontario decision that allowed civil claims other than malicious prosecution and intentional non-disclosure to proceed is Whitty v. Wells, 2014 ONSC 4920. McEwen J. found that it was not plain and obvious that the plaintiffs’ claims against the defendant Federal Standing Crown Agent should be struck on the basis of prosecutorial immunity. He wrote (at para. 29) that “[a]ttaching liability to prosecutors for misfeasance in public office, conspiracy and malicious process, which all involve some form of bad faith or malice, do not threaten the policy concerns stated in Proulx and Miazga.”

[67] The AG argues that Whitty was superseded by the decision of the Court of Appeal in Brummell v. Ontario (Attorney General), 2014 ONSC 486, aff’d 2014 ONCA 828, which upheld a motions decision striking several claims on the basis that Crown Attorney liability was limited to malicious prosecution. However, as noted by the plaintiffs, the appeal decision turned on a procedural matter unrelated to Crown Attorney liability. The AG also argues that much of the reasoning in a case relied upon by McEwen J. was overturned by the Supreme Court in Miazga. I do not read Miazga or Henry as ruling out the availability of other civil claims. Instead, Whitty appears to be consistent with both the Supreme Court and Court of Appeal jurisprudence as the claims were allowed to proceed on the basis that they involved bad faith or malice.

[68] In the Manitoba decision of Driskell v. Dangerfield, 2007 MBQB 142, 51 C.P.C. (6th) 266, partially reversed on other grounds 2008 MBCA 60, Greenberg J. held that the Crown Attorneys had neither statutory nor common law immunity against the claims made, including a non-disclosure claim. He held (at para. 43) “that whether a cause of action in negligence lies against Crown attorneys should be decided by the trial judge on the basis of a full factual record.” He agreed with a case comment written by Justice Sopinka (who had argued the Nelles case) which stated that the law was not settled on whether and when a negligence claim could be made against a Crown Attorney (at paras. 71-72). Even if the claim (at para. 66) was “‘swimming against the current of the jurisprudence’”, it was not settled law that a Crown Attorney could not be sued for negligence.

[69] The approach in Driskell was followed in the Ontario case of Ferron v. Goodier, 2010 ONSC 540. Price J. was of the view that the case law had not definitively closed negligence claims against Crown Attorneys, so the claim was allowed to proceed (see paras. 78-79).

[70] Finally, the plaintiffs cite case law indicating that government policy decisions are not immune from judicial review if they are irrational or taken in bad faith: Imperial Tobacco (at para. 90); see also Trillium Power Wind Corp. v. Ontario, 2013 ONCA 683 (at para. 48). This proposition arises from case law dealing with the different issue of the reviewability of government policy decisions and I do not find it relevant to the case at hand.

(iv) Negligent legal advice

[71] Smith v. Ontario is the only decision cited to me that deals with the potential for civil liability of Crown Attorneys to police officers, and indeed the only one that deals with claimants other than aggrieved accused persons. Matheson J. held that it was not plain and obvious that Crown Attorneys are immune from liability if they provide negligent legal advice to police officers.

[72] The police in Smith employed a “Mr. Big” operation against the plaintiff. It was designed, in part, based on input from Crown Attorneys. The plaintiff was charged with murder but acquitted after the confessions obtained from the investigation were excluded. The plaintiff then brought a civil claim against the police and the AG. The police initiated a crossclaim against the AG for contribution and indemnity, founded on the theory that the Crown Attorneys had given negligent legal advice. The AG moved to strike out the crossclaim.

[73] After reviewing the existing case law on Crown Attorney civil liability, Matheson J. found (at para. 138) that common law immunity “has been recognized only within the context of civil claims by members of the public. I am not prepared, at this preliminary stage, to divorce common law immunity from that context.” She allowed that an immunity defence might be made out at a later stage, but not on the pleadings. She went on conduct an “Anns test” analysis.

[74] Matheson J. held that, in the context of the provision of legal advice, the relationship between Crown Attorneys and police gives rise to proximity and a prima facie duty of care. She found (at para. 169) that the prima facie duty could not be negated for policy reasons based on the record before her, “perhaps because the moving parties were mainly relying on an immunity defence.”

[75] The AG argues that Smith is distinguishable on its facts and should be limited to the unique context of a potential solicitor-client relationship. The AG also submits that Smith was wrongly decided and that it improperly failed to consider why the policy concerns identified in the malicious prosecution trilogy and Henry did not apply to negate any prima facie duty in that case. The failure of the parties to address possible policy concerns in the first instance appears to have been a factor that led to Marrocco A.C.J.S.C. granting leave to appeal: Smith v. Ontario, 2017 ONSC 2854 (at para. 22).

[76] The plaintiffs argue that the AG cannot simply rely on an immunity defence to strike civil claims against it. They say that it is necessary to proceed to an “Anns test” analysis for novel claims such as the present one, and it is further necessary to have a factual record to determine the policy considerations raised by the Anns analysis.

(c) Concluding comments

[77] As mentioned at the outset of this analysis, I do not find the existing case law to be dispositive of the claim at hand. With the exception of Smith, courts have not considered potential Crown Attorney civil liability to police officers. The Court of Appeal stated in Miguna and Gilbert that Crown Attorneys are immune from negligence claims for “prosecutorial misconduct”, at least by accused persons. While a court might later decide that Crown Attorneys should also be immune from negligence claims by police officers, or indeed by any person, I agree with Matheson J. that it is not plain and obvious that such immunity has been recognized in the existing case law. I therefore decline to strike the officers’ claim on the basis of common law Crown Attorney immunity. I will therefore proceed to conduct an “Anns test” analysis on whether to recognize a new private law duty of care in the circumstances.

[78] While the existing case law is not dispositive, the Supreme Court has made very clear in Nelles, Proulx, Miazga, and Henry that Crown Attorney civil liability should be strictly circumscribed. As Lamer J. wrote in Nelles (at para. 55), the issue of prosecutorial immunity is “ultimately […] a question of policy.” The public interest is served by granting Crown Attorneys broad discretion to carry out their duties to the administration of justice. Crown Attorneys are not above the law, but the scope of their immunity is appropriately broad. As Moldaver J. stated in Henry (at para. 76), the policy concerns identified in the malicious prosecution case law “are implicated wherever there is a risk of undue interference with the ability of prosecutors to freely carry out their duties in furtherance of the administration of justice.” The officers’ proposed negligence duty of care poses such a risk, so I will consider the policy concerns reflected in the existing case law when I apply the “Anns test” analysis below.

(2) Is it plain and obvious that the officers’ negligence claim against the AG fails to disclose a reasonable cause of action? Should the court impose a private law duty of care?

[79] Having found that the existing case law regarding the scope of civil liability of Crown Attorneys is not dispositive of the plaintiffs’ claim, I must consider whether it would be appropriate to impose a new private law duty of care in the circumstances. More precisely, I must consider whether it is plain and obvious that a new private law duty of care cannot be made out on the pleadings.

[80] I begin by noting the words of Iacobucci and Binnie JJ. in Proulx (at para. 4):

Under our criminal justice system, prosecutors are vested with extensive discretion and decision-making authority to carry out their functions. Given the importance of this role to the administration of justice, courts should be very slow indeed to second-guess a Prosecutor's judgment calls when assessing Crown liability for prosecutorial misconduct. Nelles v. Ontario, [1989] 2 S.C.R. 170, affirmed unequivocally the public interest in setting the threshold for such liability very high, so as to deter all but the most serious claims against the prosecuting authorities, and to ensure that Crown liability is engaged in only the most exceptional circumstances. Against these vital considerations is the principle that the Ministry of the Attorney General and its prosecutors are not above the law and must be held accountable. […]

[81] I am therefore mindful of the need to balance the important societal interest in ensuring that Crown Attorneys have a wide scope of discretion to carry out their duties without undue interference, and the principle that they are not above the law and must be held accountable for misconduct.

(a) The test for recognizing a new private law duty of care

[82] The test for recognizing a new private law duty of care was first set out in Anns v. Merton London Borough Council, which was followed by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, 206 D.L.R. (4th) 193 and in Imperial Tobacco. In Imperial Tobacco the Supreme Court summarized the two-part test as follows (at para. 39):

At the first stage of this test, the question is whether the facts disclose a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. If this is established, a prima facie duty of care arises and the analysis proceeds to the second stage, which asks whether there are policy reasons why this prima facie duty of care should not be recognized [citation omitted].

[83] The proximity analysis looks to the relationship between the plaintiff and the defendant, which may include policy questions “in the broad sense of that word”: Cooper v. Hobart (at para. 30). At the second stage, the court should consider whether there are any “residual” policy concerns that would warrant negating a prima facie duty of care: Cooper v. Hobart (at para. 30). Not every reasonably foreseeable outcome attracts a duty of care; there must always be a sufficiently close or proximate relationship between the parties. The categories of duties of care are not closed and may expand as part of the evolution of the common law: see Cooper v. Hobart (at para. 31); and Imperial Tobacco (at para. 21).

(b) The parties’ positions on this issue

[84] The AG submits that no duty of care should be imposed because the relationship between Crown Attorneys and investigating police officers is not sufficiently proximate. Although it is often reasonably foreseeable that a Crown Attorney’s decisions would negatively affect individuals such as police officers, witnesses, or complainants, the AG submits that this is not enough to establish a duty of care. Imposing the duty proposed by the plaintiffs would be in direct conflict with the public duties of Crown Attorneys, which are derived from statutes such as the Crown Attorneys Act, R.S.O. 1990, c. C.49 and the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17. In a prosecution, the duties of Crown Attorneys are to determine whether there is a reasonable prospect of conviction, determine whether it is in the public interest to prosecute, and ensure the rights of the accused are protected. Protecting the interests of investigating police officers is extraneous to these primary duties.

[85] The AG further submits that the plaintiffs have pleaded no facts suggesting that there were interactions or representations and reliance that would support a duty of care. Otherwise, if there is a prima facie duty of care, it should be negated at the second stage of the “Anns test” by the policy considerations identified in the malicious prosecution and intentional non-disclosure case law.

[86] The AG also argues that the officers failed to comply with the rules of pleading by baldly stating that a duty of care exists without pleading sufficient facts to support such a duty. It seems clear to me that the officers have pleaded facts that permit me to analyze whether it is plain and obvious that a duty of care should not be imposed in the circumstances. I therefore do not think the negligence claim is improperly pleaded.

[87] For their part, the plaintiffs submit that Crown Attorneys owe a duty of care to investigating police officers to prevent or mitigate harm from false misconduct allegations that could harm their reputations. The specific claim of the officers, at para. 41 of their statement of claim, is:

Any careless, negligent and/or unlawful decisions made by a crown attorney, during the course of a prosecution, could result in irreparable harm to the livelihood and reputation of the investigating police officers. The prosecution is conducted under the sole discretion of the crown attorney, and a police officer is powerless to ensure that there is no injustice to themselves or the administration of justice. As a result, this foreseeability and proximity establishes a prima facie duty of care that the crown attorney has to the investigating police officers.

[88] The officers submit that a duty of care arises based either on a combination of Crown Attorneys’ statutory duties and interactions with investigating officers, or simply on specific interactions with the investigating officers. They say the AG has not raised sufficient policy concerns to override a prima facie duty of care, at least not at the pleadings stage.

(c) Is there a prima facie duty of care? – foreseeability and proximity

[89] The first step for the proximity analysis is to consider whether there are analogous categories of cases and then, if not, to consider whether to impose a new duty of care in the circumstances of the relationship between the parties: see Cooper v. Hobart (at para. 23); and Imperial Tobacco (at paras. 37-39).

[90] The officers submit that the tort of negligent investigation by police, established in Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, 285 D.L.R. (4th) 620 is analogous to the present claim. However, as McLachlin C.J.C. stated in Hill (at para. 27): “this judgment is concerned only with a very particular relationship — the relationship between a police officer and a particularized suspect that he is investigating.” And, as Matheson J. observed in Smith, the analysis in Hill was different than for Crown Attorney liability cases because there is no recognized immunity for police. It is therefore necessary “to engage in a fresh Anns analysis” for the present claim, as directed by McLachlin C.J.C. in Hill (at para. 27).

[91] For the reasons that follow, in relation to some of the allegations, I find that reasonable foreseeability is made out on the facts as pleaded.

[92] At trial, Mr. Singh brought a Charter motion alleging that he was assaulted by an investigating police officer while another officer stood by. He relied upon his own evidence and that of Mr. Maharaj. The statement of claim alleges that Ms. Cressman (1) failed to pursue investigative leads that would have undermined the allegations and, (2) failed to put before the court available evidence that would have undermined the allegations. Instead, she conceded a Charter breach. As a matter of logic, it is reasonable to anticipate, and therefore reasonably foreseeable, that these alleged acts and omissions would lead to, or fail to prevent, a finding that the accused was assaulted and, in turn, that such a finding would cause reputational harm to the officers involved.

[93] Against the appellate Crown Attorney Ms. Alyea, the officers allege that she failed to take appropriate steps to correct the record on appeal. While it is reasonably foreseeable that a failure to inform the Court of Appeal of misconduct by the trial Crown Attorney and serious inadequacies in the record below would lead to, or fail to prevent, the assault findings being upheld, I do not find that causation can be made out on the facts as pleaded. In particular, it is apparent to me that Ms. Alyea would not have succeeded on a fresh evidence application because all the evidence referred to by the officers—including their testimony and additional medical evidence—clearly could have been adduced at trial; indeed, the officers’ claim turns on the fact that Ms. Cressman could have done so. The only alleged evidence that would be “fresh” is the results of the SIU and OPP investigations, which is plainly not evidence at all. In other words, Ms. Alyea cannot have caused harm to the officers by failing to take steps that would have had no effect on the outcome of the appeal.

[94] In relation to proximity, the process of defining such a relationship of may involve examining “expectations, representations, reliance, and the property or other interests involved”: see Cooper v. Hobart (at para. 34). General representations to the public combined with other factors can create a relationship of proximity: see Taylor v. Canada (Attorney General), 2012 ONCA 479, 293 O.A.C. 312 (at para. 118). The statutory framework can also be relevant. A statute may explicitly or impliedly impose a duty of care: Imperial Tobacco (at para. 44). A duty of care may arise from specific interactions between a government actor and claimant where it is not negated by statute: see Imperial Tobacco (at para. 45). It is also possible that a duty could arise from a combination of statutory duties and specific interactions: see Imperial Tobacco (at para. 46).

[95] Even if a duty of care arises on the basis of interactions between the parties, the statutory scheme may be relevant because it provides context to and shapes the relationship between the parties; any duty of care must be consistent with public duties; and a statute may indicate whether the legislature intended to limit private law duties: see Taylor (at paras. 76 & 88); Syl Apps (at paras. 27-29).

[96] While it is more common to see a duty to take reasonable care not to cause direct harm, it is possible for government authorities to face claims where they fail to take reasonable steps to prevent or mitigate harm by third parties: see Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5; Taylor.

[97] The plaintiffs rely on the statutory duties of Crown Attorneys set out in s. 11 of the Crown Attorneys Act, and on Crown Attorney duties arising from policy and case law. For example, that a prosecutor’s duty is not to obtain a conviction but rather “to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly”: R. v. Boucher (1954), [1955] S.C.R. 16 (at para. 26). The plaintiffs cite several other decisions regarding the scope of Crown Attorneys’ duties to put evidence before the court.

[98] The plaintiffs do not assert that the proposed duty arises solely from statute. Rather, they say that it arises from a combination of statutory duties and specific interactions, or just specific interactions. The plaintiffs submit that the following facts pleaded in their statement of claim support a finding of a relationship of proximity between them and the Crown Attorneys:

• The officers investigated the allegations against Mr. Maharaj and Mr. Singh and interviewed them after their arrests (statement of claim, at paras. 7-9).

• The officers testified for the Crown at the preliminary hearing and denied the assault allegations (at para. 11).

• The Crown Attorneys had access to individuals and records that could have rebutted the misconduct allegations against the police (at paras. 13-17, 20).

• The Crown Attorneys made representations to the officers that they would be called to give evidence to rebut the allegations, the officers relied on these representations, but they were not ultimately called (at para. 21).

• Before the appeal, the Crown Attorneys were made aware of the results of the internal police investigation finding that the assault allegations could not be substantiated (at para. 43).

• The plaintiff Watt met with the appellate Crown to advise of the mistakes made at trial (at para. 32).

[99] It is helpful at this stage to set out more clearly my understanding of the proposed duty of care. When an accused person brings a Charter application or motion in a criminal proceeding, they may allege that their Charter rights were breached as the result of the acts or omissions of a police officer or officers. For example, an accused might claim that a police officer conducted an illegal search or failed to uphold their right to counsel. The police conduct that underpins that sort of alleged Charter breaches will often be inadvertent or based on a good faith misunderstanding of the applicable law. Such claims pose little risk to police officers’ reputational or professional interests.

[100] The situation is different, however, where an accused person claims that a police officer has assaulted them or otherwise engaged in serious and, potentially, unlawful misconduct. As I understand the proposed duty, it is not an open-ended duty owed by Crown Attorneys to all investigating police officers. Rather, it is limited to the class of investigating police officers whose conduct has been impugned by allegations of serious misconduct made by an accused. The officers propose that Crown Attorneys should have a duty of care to such officers to take reasonable care to investigate such allegations and adduce material evidence in court.

[101] I agree with the AG that, standing alone, the statutory duties of the AG and Crown Attorneys appear to be public in nature and do not impose a private law duty of care with respect to investigating police officers. The questions are really whether a duty of care is made out from a combination of statutory duties and specific interactions (or just specific interactions) and whether such a duty would conflict with Crown Attorneys’ “overarching duty to the public”: Cooper v. Hobart (at para. 44).

[102] Crown Attorneys and police officers play distinct roles in our criminal justice system, often described as “prosecutorial” and “investigative” functions, but must nevertheless work together as a practical matter to support the administration of justice: R. v. McNeil, 2009 SCC 3, 301 D.L.R. (4th) 1 (at paras. 22-23); and R. v. Regan, 2002 SCC 12, 209 D.L.R. (4th) 41 (at paras. 62 & 66).

[103] The reputational interests of police officers may be engaged in the course of a prosecution when their conduct becomes the subject of a Charter motion by the accused alleging serious misconduct. Crown Attorneys have sole responsibility for conducting a prosecution (subject, of course, to the court’s control of its processes) and police officers have no standing to intervene on such Charter motions. Findings of Charter breaches for serious misconduct could cause reputational harm to police officers.

[104] In my view, it is not plain and obvious that there would be no prima facie duty of care owed by trial Crown Attorneys to police officers to take reasonable care in the course of investigating and defending Charter motions alleging serious misconduct by police officers. Such a proximate relationship could arise from the fact that significant interests of police officers are engaged when they are subject to misconduct allegations on Charter motions that only Crown Attorneys are in a position to defend against.

[105] There is some discussion in the parties’ materials regarding the decision to stay the proceedings against Mr. Maharaj. I do not think that the police have any claim in this respect. It is clear that Crown Attorneys have wide discretion to initiate or stay proceedings and they should not owe a duty to take into account the interests of police officers when deciding whether to proceed. In any event, it seems to me that there would be either no harm to police from such decisions or that any harm would be too remote. The proposed duty, if available, could only be available where an accused person has brought a Charter motion alleging serious misconduct and a court will be asked to hear evidence and decide the merits of the allegations.

(d) Whether there are policy considerations to negate a prima facie duty of care

[106] Having found that it is not plain and obvious that trial Crown Attorneys do not owe a prima facie duty of care to investigating police officers, I must proceed to the second stage of the “Anns test” and consider whether there are any “residual” policy reasons to negate this prima facie duty: see Imperial Tobacco (at para. 39); and Cooper v. Hobart (at para. 30).

[107] As the Supreme Court explained in Cooper v. Hobart (at para. 37), the policy considerations are not about the relationship between the parties, but the effect of the prima facie duty of care

on other legal obligations, the legal system and society more generally. Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized?

[108] The AG has asked me to consider, and find dispositive, three particular policy concerns raised in Nelles, Proulx, Miazga, and Henry. The first is that expanding liability would conflict with and undermine prosecutors’ abilities to discharge their public duties. Second, it would influence prosecutors’ decision-making, causing a chilling effect and making them more defensive. Third, it would cause a flood of litigation.

[109] The plaintiffs say that these policy concerns do not meet the Supreme Court’s requirements as prescribed in Hill (at para. 48) as follows: “[P]olicy concerns raised against imposing a duty of care must be more than speculative; a real potential for negative consequences must be apparent.”

[110] I agree with the AG that the primary duties of Crown Attorneys when conducting a prosecution are to determine whether there is a reasonable prospect of conviction, to determine whether it is in the public interest to prosecute, and to ensure that the accused’s rights are protected. As found above, I agree that Crown Attorneys should not have to consider the interests of police officers in deciding whether to bring or stay proceedings, both because such a duty would conflict with core prosecutorial discretion and because any harm would be too remote.

[111] The plaintiffs submit that, once an accused person has made allegations of serious misconduct against a police officer, a Crown Attorney’s duties would not conflict with the proposed duty to police. Crown Attorneys could take reasonable care to investigate and defend Charter claims alleging serious police misconduct in a manner consistent with the rights of the accused and their other duties. The officers, in essence, submit that the proposed duty would simply require that Crown Attorneys to take reasonable care to do things they should already take reasonable care in doing.

[112] As I turn to the policy concerns raised by the AG, I must return to the question of whether I can strike this claim on the basis of residual policy concerns without an evidentiary record. This question arises because the policy considerations identified by the AG rest on premises regarding how Crown Attorneys would conduct themselves if the proposed duty were recognized.

(i) Competing policy considerations and the need for evidence

[113] Some case law suggests that courts should be reluctant to strike claims that raise competing policy considerations without a record on which to analyze those considerations. However, there are occasions where major policy concerns are apparent on the pleadings such that a court may strike a claim for policy reasons without the need for evidence. I will review some of the case law relevant to this issue.

[114] In Haskett v. Equifax Canada, the plaintiff sought to certify a class action against two credit reporting agencies. The proposed class action included a claim that the defendants negligently breached a duty to the proposed class members by reporting statute-barred debts and failing to implement procedures to remove such prohibited information from their credit reports. The defendants brought a motion to strike the claim for disclosing no cause of action. The motion judge found, at the second stage of the “Anns test”, that the two policy concerns of indeterminate liability and availability of alternative statutory remedies negated any prima facie duty.

[115] The Court of Appeal in Haskett reversed the motion judge’s decision on the negligence claim. Feldman J.A. found (at paras. 44-48) that, on the pleadings, the proposed duty did not raise the spectre of unlimited liability. On the second policy concern of possible alternative statutory remedies, Feldman J.A. wrote (at para. 52) that,

at trial the parties will be able to lead evidence on the effectiveness of the statutory procedures, how often they are used, how quickly they proceed and with what results. This information will be available from the Ministry and can form the factual background necessary to weigh the necessary policy considerations. A court should be reluctant to dismiss a claim as disclosing no reasonable cause of action based on policy reasons at the motion stage before there is a record on which a court can analyze the strengths and weaknesses of the policy arguments. [Emphasis added.]

[116] The approach reflected in the foregoing passage has been followed in a number of decisions on motions to strike novel negligence claims. See, for example, the Divisional Court in Williams, which cited Haskett (at para. 47) in reversing the motion judge’s finding that a prima facie duty of care should be negated because of the risk of indeterminate liability and the shifting of obligations from landlords to the defendant municipality. Swinton J. found (at paras. 49-50) that the policy concerns referred to by the motion judge could not negate the prima facie duty at the pleadings stage because: (1) there was no evidence to support these conclusions, (2) the City did not make these policy arguments at the hearing on the motion, and (3) the proposed duty would not have created indeterminate liability.

[117] Similarly, in Pardhan v. Bank of Montreal, Horkins J. rejected the defendant bank’s argument that any prima facie duty to the plaintiff investors should be negated by countervailing policy considerations. The bank submitted that these included possible indeterminate liability to an indeterminate class, the specialization of roles as between regulators and banks, and the onerous cost of compliance. Horkins J. followed Haskett and Williams in concluding (at para. 218) that “[t]he parties must be afforded an opportunity to provide evidence as to whether policy concerns should dictate against imposing a duty of care against BMO for negligence based on constructive knowledge.”

[118] Carole Brown J. also dealt with a novel proposed duty of care in Choc v. Hudbay Minerals Inc.. The plaintiff members of an Indigenous community in Guatemala claimed that the defendant mining companies negligently caused them harm. The defendants raised several policy concerns, including that parliament had rejected bills that would have increased liability for Canadian extractive corporations and that the duty would impinge upon corporate separateness. The plaintiffs argued that recognizing the proposed duty would allow tort law to evolve to accord with globalization and support the government’s stated goals of improving corporate social responsibility and reducing human rights abuses. Brown J. held (at para. 74) that “[t]here are clearly competing policy considerations in recognizing a duty of care in the circumstances of this case. This alone would prevent it from being plain and obvious that this step of the “Anns test” will fail.” She also cited para. 52 of Haskett in support of this finding (at para. 74).

[119] The most recent appellate authority on the issue of policy considerations and evidence in the context of a motion to strike is the Court of Appeal’s decision in Paton Estate. In that case, the plaintiffs were two estates who had been defrauded by a “problem gambler” who then lost the money taken from the estates by gambling at the casinos of the defendant (the Ontario Lottery and Gaming Commission, or OLGC). The plaintiffs brought a negligence claim against OLGC alleging that it owed them a duty of care to prevent problem gamblers from losing money. The defendant brought a motion to strike the claim.

[120] The motion judge in Paton Estate held that there was no relationship of proximity between the OLGC and the plaintiffs but that, even if there was, any prima facie duty of care would be negated at the second stage of the “Anns test” because such a duty would result in indeterminate liability and cause casinos to go out of business. In reversing that decision, the Court of Appeal held (at para. 35) that

the factual assertion that casinos would go out of business if a duty of care to problem gamblers were to be recognized has no place on a pleadings motion. Factual findings will have to await a hearing on the merits with the benefit of an evidentiary record.

The court similarly found (at para. 36) that the proposed duty would not “necessarily result in indeterminate liability” and that “[t]he dimensions of this problem cannot be determined on a pleadings motion.”

[121] Common to all these decisions is that the factual relationship underlying the alleged duty of care was specific and unusual: in Haskett, between credit reporting agencies and consumers; in Williams, between a municipality and certain tenants who did not get the benefit of a tax reduction; in Pardhan, between a bank and defrauded investors; in Choc, between indigenous people and a mining enterprise; and in Paton, between parties liable to be defrauded by problem gamblers and a gaming regulator. Thus, where the court has encountered a novel situation and relationship, it has been reluctant to evaluate competing policy considerations in the absence of a suitable factual or evidentiary record.

[122] This brings me to several Supreme Court decisions where the Court has determined competing policy considerations on a preliminary motion without an evidentiary record.

[123] Imperial Tobacco was a case involving claims by a provincial government against several tobacco companies to recover the cost of health care costs incurred to treat the victims of smoking-related diseases. The defendant tobacco companies commenced a third party claim for contribution and indemnity against the federal government for its alleged role in the creation and promotion of “low-tar”, “light”, or “mild” cigarettes, including claims for negligent design and negligent misrepresentation.

[124] The Supreme Court struck out both negligence claims against Canada. It found that Canada owed a prima facie duty of care to tobacco companies in its development of and representations regarding low-tar, light, and mild strains of tobacco and cigarette products. However, for both of the negligence claims, McLachlin C.J.C. held that Health Canada’s alleged role in developing these tobacco strains and making representations to tobacco companies and the public (including encouraging smokers who could not quit to switch to low-tar cigarettes) reflected a core government policy decision that could not be subject to judicial review (at paras. 92-96 and 116). McLachlin C.J.C. also found that the prospect of indeterminate liability was otherwise fatal to the claim because it was for economic loss for which Canada had no control over the extent of its potential liability. This was because damage depended on how many cigarettes the tobacco companies sold to consumers.

[125] While the Supreme Court determined the policy concerns in Imperial Tobacco without an evidentiary record, the tobacco companies’ claim presented different issues than the present motion, related to government policy decisions and flow-through liability for a mass-market consumer product. While Imperial Tobacco demonstrates the general proposition that courts may resolve policy concerns based on the pleadings, the decision confirms (at para. 70) that “[i]f there is a reasonable chance that the matter as pleaded may in fact turn out not to be a matter of policy, then the application to strike must be dismissed. Doubts as to what may be proved in the evidence should be resolved in favour of proceeding to trial.”

[126] The Supreme Court also dealt with the second stage of the “Anns test” analysis in Syl Apps. The issue in Syl Apps was (at para. 22) “whether the Syl Apps Secure Treatment Centre and Mr. Baptiste, R.D's social worker/case coordinator there, owe a duty of care to the family of the child they have been ordered by the court to treat.”

[127] The motion judge in Syl Apps struck out the claim as disclosing no reasonable cause of action but the Court of Appeal found that there was a prima facie duty of care that could not be negated for residual policy reasons on the pleadings. Justice Laskin for the Court of Appeal was of the view that, while a doctor’s overriding duty may be to his or patient, it was at least arguable that the defendants could owe a different kind of duty to the plaintiff family that would not necessarily conflict with their duties to the child.

[128] The Supreme Court reversed the Court of Appeal decision in Syl Apps and held that there was no relationship of proximity because a duty to the family would conflict with a duty to the child. This finding turned in large part on statutory interpretation of the Child and Family Services Act, R.S.O. 1990, c. C.11, which, as the jurisprudence indicated, clearly promoted (at para. 44) “[t]he primacy of the best interests of the child over parental rights in the child protection context”. Further, two “legislative policy” considerations supported the finding of no proximity. One was that the Child and Family Services Act provided a remedy for families wishing to challenge their children’s treatment. The other was that there was clear legislative intent to protect workers in the child protection field from liability for good faith exercise of their statutory duty. An additional policy consideration was the possibility of parallel proceedings to child protection hearings, which could lead to relitigating the same issues in different proceedings.

[129] The other decisions cited by the AG – Nelles, Proulx, Miazga, and Henry – dealt with questions of Crown Attorney civil liability and are discussed in greater detail above. Like the present claim, these cases involved the potential imposition of liability on Crown Attorneys for misconduct in the course of their duties.

[130] Various comments made by the Court and referenced earlier in these reasons are instructive. A plaintiff must prove "an improper purpose or motive, … that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve." (Nelles, at para. 55). "[A] suit for malicious prosecution must be based on more than recklessness or gross negligence." (Proulx, at para. 35). "[L]iability will not be imposed in cases where a prosecutor proceeds, absent reasonable and probable grounds by reason of incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence." (Miazga, at para. 81).

[131] Most recently, in Henry, Moldaver J. engaged in a weighing of competing policy considerations (at paras. 67-81) without an evidentiary record. He also stated (at paras. 71 to 73) as follows:

These compelling good governance concerns -- raised in Nelles and its progeny -- must be taken into account in determining the appropriate liability threshold for cases of wrongful non-disclosure. As the Chief Justice held in Ward, "the underlying policy considerations that are engaged when awarding private law damages against state actors may be relevant when awarding public law damages directly against the state" (para. 22). There are two policy considerations from the malicious prosecution trilogy that I wish to emphasize. First, the liability threshold must ensure that Crown counsel will not be diverted from their important public duties by having to defend against a litany of civil claims. Second, the liability threshold must avoid a widespread "chilling effect" on the behaviour of prosecutors.

The first concern -- diversion from duties -- underscores the need for a high liability threshold. In the disclosure process, mistakes are certainly the exception rather than the rule. That said, if every minor instance of wrongful non-disclosure were to expose prosecutors to liability for Charter damages, they would find themselves spending much of their limited time and energy responding to lawsuits rather than doing their jobs. They "would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials", an outcome that "bode[s] ill for the efficiency of [Crown prosecutors] and the quality of our criminal justice system": Elguzouli-Daf v. Commissioner of Police of the Metropolis, [1995] Q.B. 335 (C.A.), at p. 349. That avalanche would no doubt contain a few strong claims of serious wrongful non-disclosure, but would invariably bring with it scores of meritless claims, each of which would have to be defended at the expense of core Crown functions. The collective interest of Canadians is best served when Crown counsel are able to focus on their primary responsibility -- the fair and effective prosecution of crime. In my view, the liability threshold must allow for strong claims to be heard on their merits, while guarding against a proliferation of marginal cases.

The second policy concern -- the chilling effect on Crown counsel -- also supports a high liability threshold. Fear of civil liability may lead to defensive lawyering by prosecutors. One consequence of this defensive approach would be disclosure decisions motivated less by legal principle than by a calculated effort to ward off the spectre of liability. The public interest is undermined when prosecutorial decision-making is influenced by considerations extraneous to the Crown's role as a quasi-judicial officer.

[132] Moldaver J. concluded (at para. 76) that:

[133] The four Supreme Court decision I have just mentioned (Nelles, Proulx, Miazga, and Henry) all demonstrate that, in the context of claims against Crown Attorneys, an evidentiary record is not necessarily a prerequisite to evaluating policy considerations relevant to imposing liability. Courts deal with the conduct of and relationships between Crown Attorneys and the police on a day-to-day basis. As such they are far better equipped to weigh policy issues involving these justice system participants – without the need for an evidentiary record – than situations involving casino regulators, municipalities and tenants, or credit reporting agencies. I therefore do not consider the absence of an evidentiary record a bar to completing the final phase of the "Anns test" in the present case.

(e) Assessing the policy considerations in the present case

[134] It is clear that the policy concerns from the malicious prosecution trilogy, echoed in Henry, are “implicated” when there is a risk of interference with prosecutors’ ability to carry out their duties. That is precisely the situation in the present case. The type of liability the officers are asking the court to impose would create a whole new class of potential claimants. It would require Crown Attorneys to consider, in each case, whether the reputational interests of the police dictate a certain approach to a particular case. It would divert Crown Attorneys from their basic responsibilities of assessing whether there are reasonable and probable grounds to prosecute a case, deciding whether it is the public interest to do so, and protecting and respecting the rights of the accused. Adding a separate private law duty to concerned police officers would add a consideration that is extraneous to those primary responsibilities.

[135] An expansion of the responsibilities of Crown Attorneys to include such a duty could result in cases proceeding to trial merely to resolve the concerns of the police. It would alter what should be a co-operative relationship between the police and Crown Attorneys into a potentially adversarial one, in which police would become not just investigators and witnesses, but also litigants with a stake in the outcome, as well as potential claimants against the Crown Attorneys. The potential for conflict and disruption to the relationship is apparent. Moreover, in this era of strained judicial and court resources, the expansion of Crown Attorneys' duties in the fashion proposed by the officers carries with it the risk of increased time spent litigating criminal cases for non-core reasons, a most undesirable consequence.

[136] Additionally, there are alternative and more proper forums for determination of allegations of police misconduct, including police complaints processes, police disciplinary tribunals and civil actions. Each of these procedures focuses on the types of allegations the officers in this case face and affords officers a proper opportunity to participate and respond to such allegations, separate and apart from the criminal process. A Charter motion in a criminal trial is focused on the rights of the accused and does not result in a judgment against an officer; these alternative forums focus directly on the conduct of officers rather than making findings about the rights of the accused. Indeed, in the present case, the officers were vindicated by these procedures.

[137] For the above reasons, despite my finding that a relationship of proximity exists, I conclude that there are valid and important policy reasons not to expand the civil liability of Crown Attorneys in a case such as this. I therefore decline to impose a private law duty of care in favour of police officers as against Crown Attorneys in relation to the conduct of prosecutions. As a result, the plaintiffs' negligence claim should be stricken.

(3) Does the officers’ claim for misfeasance in public office as pleaded assert the necessary legal elements of that cause of action?

[138] Finally, I must consider the officers’ claim against the AG for misfeasance in public office. In particular, the AG asks me to find that that the plaintiffs have not made out the elements of the tort of misfeasance in public office in their pleading. My approach to assessing this claim differs from the officers’ negligence claim, in that misfeasance in public office is a recognized cause of action, whereas in the former instance the plaintiffs were asking me to extend the liability of Crown Attorneys into a new sphere. This analysis is thus different, in that my task is to review the statement of claim and determine whether it contains sufficient allegations that, if proven, would establish the cause of action. As well, the statement of claim is to be read generously with allowance for inadequacies due to drafting deficiencies: see Toronto-Dominion Bank v. Deloitte Haskins & Sells (1991), 5 O.R. (3d) 417 (Gen. Div.).

[139] In support of its submission, in the first instance the AG relies on the argument that Crown Attorneys enjoy immunity from civil claims, save those for malicious prosecution and intentional failure to disclose exculpatory evidence. For the reasons set out previously, I do not accept that argument. It is therefore necessary to examine the elements of the tort of misfeasance in public office and to assess whether it is plain and obvious that the facts alleged in the statement of claim, if proven, would establish liability.

(a) The tort of misfeasance in public office

[140] The constituent elements of the tort of misfeasance in public office are set out by Iacobucci J. in Odhavji Estate v. Woodhouse, 2003 SCC 69, 233 D.L.R. (4th) 193 (at para. 32) as follows:

the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries and that the injuries suffered are compensable in tort law.

[141] There are at least two different ways a public officer can commit the tort. Under “Category A,” where “a public officer acts for the express purpose of harming the plaintiff, then each aspect of the tort is satisfied because public officers do not have authority to act for improper purposes such as causing harm to members of the public: Odhavji (at para. 23). Under “Category B” (at para. 22) the tort is made out by “a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff.” Regardless of the category, “the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff": Odhavji (at para. 23). The tort of "misfeasance in a public office requires an element of bad faith or dishonesty”: Odhavji (at para. 28). For a public officer’s "conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent within the obligations of the office": Odhavji (at para. 28).

[142] In the United Kingdom, a failure to act can amount to misfeasance in public office if the public officer is under a duty to act: Odhavji, at para. 24. Although the Supreme Court of Canada has yet to consider extending the cause of action to such situations, it would be logical to include inaction as a means by which this tort may be committed.

(b) The parties’ positions on this issue

[143] The AG submits that the same policy concerns against expanding Crown Attorney civil liability to include negligence claims by investigating police officers should apply to bar the expansion of the tort of misfeasance of public office. The AG submits that, in the criminal context, courts do not review prosecutors’ tactical decisions, such as whether to present certain evidence or call certain evidence unless there is an abuse of process or the accused’s fair trial rights are violated. The AG cites the following decisions in support of this proposition: R. v. Hillis, 2016 ONSC 451, 26 C.R. (7th) 329, at para. 41; R v. L.L., 2015 ABCA 222, 602 A.R. 178, at para. 13; Miazga, at para. 51.

[144] I note that Hillis, L.L., and Miazga do not appear to go quite as far as the AG suggests. A Crown Attorney’s exercise of prosecutorial discretion is only reviewable for abuse of process but, as Moldaver J. explained in R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 36 (a decision cited in both Hillis and L.L.), “tactics and conduct before the court are subject to a wider range of review”. While courts should only review Crown Attorneys’ tactical decisions in exceptional circumstances, including to prevent unfairness to the accused, I do not think that the cases cited by the AG support the proposition that preventing unfairness to the accused is the only ground other than abuse of process on which courts can review Crown Attorneys’ tactical decisions. This issue may arise most often in the context of defence efforts to prevent unfairness to the accused but, while the case law clearly restricts the reviewability of exercises of prosecutorial discretion to abuse of process only, there is no such absolute restriction on the reviewability of Crown Attorneys’ tactical and conduct decisions.

[145] In addition, according to the AG, the plaintiffs have failed to comply with the rules of pleading for their misfeasance in public office claim, in particular by failing to plead an unlawful act. The AG states that no facts are pleaded to show that the Crown Attorneys acted partially or that they knew they were acting unlawfully.

[146] The plaintiffs submit that the test for misfeasance in public office is made out. First, the conduct was deliberate because Ms. Cressman knew of the available evidence and consequences of failing to put it before the court. Ms. Alyea knew of the alleged errors below and the consequences of failing to correct the record on appeal. They both acted unlawfully in violation of their duties under the Crown Attorneys Act. Second, the pleaded facts indicate they did so for an improper purpose – to protect their own agents. Third, the Crown Attorneys were aware, recklessly indifferent, or wilfully blind, to the likelihood that failing to challenge the allegations would harm the officers’ reputations. Fourth, the pleaded facts establish causation, that the unlawful conduct caused reputational and emotional harm to the officers.

[147] Further, the officers submit that they have pleaded the required elements of a misfeasance in public office claim with full particulars, including the allegations about specific public officials, their bad faith and unlawful conduct, and the foreseeability and occurrence of harm. Their allegations link to actual events, documents, and people.

(c) Analysis

[148] It is useful to recap the specific allegations made in the statement of claim in support of this cause of action. Among other specific factual allegations, they assert that the Crown Attorneys:

a) failed to ascertain the veracity of Mr. Maharaj’s and Mr. Singh’s allegations of abuse;

b) failed to call the officers to refute these false allegations;

c) ignored key facts;

d) knew there was medical evidence to suggest the injury to Mr. Maharaj was older than the day of his arrest;

e) knew Mr. Maharaj’s treating physician would have raised serious questions about the truth of his injury;

f) knew the bail hearing evidence contradicted Mr. Maharaj’s allegations of abuse;

g) knew there was documentation that indicated Mr. Maharaj lied;

h) knew of material facts that exonerated the officers and implicated Ms. Cressman’s conduct that were suppressed by senior Crown law officers and deliberately kept from the Court of Appeal in order to protect their own agents’ conduct; and

i) knew their misconduct would injure the plaintiffs.

The plaintiffs assert that, in relation to the foregoing conduct, the Crown Attorneys acted deliberately, in bad faith, unlawfully, and in contravention of their statutory obligations and duties to the administration of justice.

[149] By means of the above allegations, the officers have pleaded that the Crown Attorneys acted unlawfully by acting in breach of their statutory duties under the Crown Attorneys Act and by breaching their oath of office. In my view, they have pleaded the essential elements of the tort of misfeasance in public office by asserting knowing, deliberate, and unlawful disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiffs.

[150] The dispute between the parties largely relates to the proper construction of the statutory duties of Crown Attorneys and whether they were in fact breached in this case. At this stage, on a motion to strike, I am not called upon to decide if the plaintiffs can prove their allegations; instead, I am required to assume they can. The AG’s defence that the Crown Attorneys acted within the scope of their duties and did not breach any legal obligations is a matter properly determined at a hearing on the merits.

[151] I therefore conclude that the plaintiffs’ claims based on the tort of misfeasance in public office should be allowed to proceed.

V - Conclusion and Disposition

[152] In relation to the three issues raised in this motion, my analysis leads me to the following conclusions:

(1) Crown Attorneys do not have absolute immunity from civil claims other than claims for malicious prosecution and intentional non-disclosure.

(2) For policy reasons, the court should not find that a private law duty of care is owed by Crown Attorneys to police officers to avoid causing reputational harm to officers during the conduct of a prosecution. As a result, the plaintiffs' claims founded in negligence should be stricken.

(3) On the facts alleged in the statement of claim, the plaintiffs have properly pleaded a claim for the tort of misfeasance in public office, and thus that aspect of their action should be allowed to proceed.

[153] In relation to costs, success on this motion has been divided. Ordinarily, such a result would suggest that each side should bear its own costs. If any party disagrees with that disposition, they may make a request to my assistant within 10 days to arrange a conference call with me to discuss a suitable process for addressing the issue.

___________________________ Stinson J.

Released: June 13, 2017

CITATION: Clark v. Ontario (Attorney General), 2017 ONSC 3683

COURT FILE NO.: CV-16-555292

DATE: 20170613

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMIE CLARK, DONALD BELANGER and STEVEN WATTS

Plaintiffs/Responding Parties

– and –

ATTORNEY GENERAL OF ONTARIO

Defendant/Moving Party

REASONS FOR JUDGMENT

Stinson J.

Released: June 13, 2017

I - Introduction

II - The facts alleged in the statement of claim

(a) The arrests and preliminary hearing

(b) Mr. Maharaj’s stay of proceedings

(c) Mr. Singh’s trial and application for stay of proceedings

(d) After the trial

(e) Mr. Singh’s appeal

(f) After the appeal

III - The test for rule 21.01(1)(b) motions – whether the claim discloses a reasonable cause of action

(a) The effect of the novelty of the claim and competing policy considerations

IV - Issues

(1) Do Crown Attorneys have absolute immunity from civil claims other than claims for malicious prosecution and intentional non-disclosure? What is the present scope of Crown Attorney civil liability?

(a) The parties’ positions on this issue

(b) Analysis

(i) The malicious prosecution trilogy

(ii) Intentional non-disclosure of exculpatory evidence

(iii) Other decisions on Crown Attorney civil liability

(iv) Negligent legal advice

(c) Concluding comments

(2) Is it plain and obvious that the officers’ negligence claim against the AG fails to disclose a reasonable cause of action? Should the court impose a private law duty of care?

(a) The test for recognizing a new private law duty of care

(b) The parties’ positions on this issue

(c) Is there a prima facie duty of care? – foreseeability and proximity

(d) Whether there are policy considerations to negate a prima facie duty of care

(i) Competing policy considerations and the need for evidence

(e) Assessing the policy considerations in the present case

(3) Does the officers’ claim for misfeasance in public office as pleaded assert the necessary legal elements of that cause of action?

(a) The tort of misfeasance in public office

(b) The parties’ positions on this issue

(c) Analysis

V - Conclusion and Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 3

Legislation 4