Court File and Parties
COURT FILE NO.: 19-68339 DATE: 2021-03-04 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Natenon Tongtae, (Plaintiff) A N D: Christian Pottle, Amherstburg Police Services Board, Her Majesty the Queen in Right of Ontario, Keith Mallory, Madison Township Police Department (Defendants)
BEFORE: The Honourable Justice A.J. Goodman
COUNSEL: D. Phelan, for the moving party, The Queen in Right of Ontario, Defendant M. Winward, for the Plaintiff
HEARD: February 3, 2021
Endorsement
[1] The defendant, Her Majesty The Queen in Right of Ontario (“HMQ”) brings a motion for a determination under rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, primarily on the ground that there is no private law duty of care owed to the plaintiff. HMQ also argues that the plaintiff has failed to establish a reasonable cause of action against HMQ.
[2] For the following reasons, I grant HMQ’s Rule 21 motion. The action is dismissed as against this defendant, without leave to amend.
Issues:
[3] Is there a prima facie duty of care owed by HMQ to the plaintiff established, either explicitly or by implication, from a statutory scheme?
[4] Is there a category of previous cases where a similar or analogous duty as between the plaintiff and the defendant that has been recognized?
[5] If there is no prima facie duty established by statute or from a previous category of case or by analogy to a previous category of case, should a new category of duty be recognized under the Anns/Cooper analysis?
Background:
[6] The plaintiff is a resident of the State of Ohio.
[7] On February 9, 2017, the plaintiff’s father contacted the defendant, Madison Township Police Department (“MTPD”) in the State of Ohio, to report that the plaintiff had gone missing. The father expressed that his son was experiencing some form of mental breakdown.
[8] On February 13, 2017, the defendant Christian Pottle, (“Pottle”) a police officer with the defendant, Amherstburg Police Services Board, conducted a traffic stop of the vehicle operated by the plaintiff.
[9] During the course of the traffic stop, Pottle determined that the plaintiff had been reported as a missing person in Ohio. He then contacted the defendant, Keith Mallory, (“Mallory”) a police officer with MTPD. Pottle and Mallory had a conversation, the details of which are unknown to the plaintiff. Pottle issued a speeding ticket to the plaintiff and then released the plaintiff.
[10] About seven hours after being released by Pottle, the plaintiff’s motor vehicle was spotted driving in an erratic manner on Highway 401 in Milton. OPP officers attempted, without success, to stop the plaintiff’s vehicle.
[11] The plaintiff abandoned his vehicle at the intersection of Bronte Street and Heslop Road in Milton. He then proceeded by foot toward railway tracks located near 300 Bronte Street in the Town of Milton.
[12] The plaintiff then attempted to climb onto a passing train but fell and was struck by the train, resulting in both of his legs being severed below the knee.
[13] Throughout the time he was missing from his family, it is alleged that the plaintiff was experiencing a delusional and/or psychotic disorder such that he was incompetent to care for himself to the point that he posed a serious risk of harm to himself.
The Claim against HMQ:
[14] The Statement of Claim seeks $10,000,000 in general damages.
[15] With respect of HMQ, the plaintiff alleges the following: HMQ operates the Ministry of Community, Safety and Correctional Services and was responsible for the curriculum of the Ontario Police College, which is responsible for training police constables - including the named Amherstburg police officer - about their duties under the Police Services Act R.S.O. 1990, c.P.15, and the Mental Health Act, R.S.O. 1990, c.M.7. The Ontario Police College failed to provide adequate training to the named Amherstburg police officer regarding the use of s. 17 of the Mental Health Act; employed incompetent and/or inexperienced agents, servants or employees to provide training to the named Amherstburg police officer regarding the use of s. 17 of the Mental Health Act; failed to provide any or adequate training for the named Amherstburg police officer in dealing with members of the public, such as the plaintiff, who are suffering from a mental disorder; and failed to keep current with methods by which to train police officers so as to better determine whether to enforce their powers under s. 17 of the Mental Health Act.
[16] The claim does not allege any direct dealings between any employee, servant or agent of HMQ and the plaintiff, at any time.
Legal Principles:
[17] Rule 21.01(1)(b) provides that a judge may strike out a pleading that discloses no reasonable cause of action. On such a motion, a defendant must show that it is “plain and obvious” that the claim cannot succeed. This test will be met where:
- A plaintiff pleads allegations that do not give rise to a recognized cause of action;
- A plaintiff fails to plead a necessary element of a recognized cause of action;
- The allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts, or in other instances, mere conclusions of law are asserted: Hunter v. Bravener et al., [2003] O.J. No. 1613 (C.A.) at paras. 3-5, leave to appeal to S.C.C. denied [2003] S.C.C.A. No. 306, McCreight v. Canada, 2013 ONCA 483, 116 O.R. (3d) 429, at paras 29, 39, 45.
[18] On a rule 21 motion, the allegations set out in the statement of claim, unless blatantly ridiculous or incapable of proof, must be taken as true. However, vague allegations or allegations that are assumptions or speculations are by their very nature incapable of proof by evidence, and therefore are not to be taken as true: McCreight, at paras. 29, 39.
[19] Leave to amend should not be granted in cases where the underlying legal foundations of the claim proceed on an erroneous interpretation of statutory obligations: Meekis v. Ontario, 2019 ONSC 2370, [2019] O.J. No. 2041 at para. 163.
[20] There is a high onus on a defendant in a rule 21 motion. The defendant must demonstrate, based only on the pleadings, that it is plain and obvious that the pleading discloses no reasonable cause of action. Another way of putting the test is that the claim has no reasonable prospect of success. Where there is a reasonable prospect of success, the matter should be allowed to proceed to trial: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17.
[21] On this type of motion, it does not matter that the cause of action is a novel one. Novelty as a cause of action should not result in the plaintiff’s claim being struck under this rule. In the interests of justice, a motion to strike is a tool that must be used with care. The law is not static and unchanging.
The Approach to Determine Whether a Duty of Care Exists
[22] In the ten years between 2001 and 2011, the Supreme Court of Canada considered at least ten cases dealing with whether a defendant owed a private law duty of care to a plaintiff. Each case was decided under the same analysis based on the particular factual matrix that was before the court.
[23] For example, cases where there was no duty of care established include Cooper v. Hobart, 2001 SCC 79, where the Registrar of Mortgage Brokers did not owe a duty of care to warn investors of a brokers violations of British Columbia’s Mortgage Brokers. In Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, the Law Society did not owe a duty of care to warn investors of a lawyer’s improper use of a trust account. In Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, a social host did not owe a duty of care to the public who may be injured by an intoxicated guest’s conduct. In Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, a treatment centre was not liable for a duty of care to a child’s family in treating a child who was found to be in need of protection.
[24] In Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, the court held that a police officer does owe a duty of care to suspects to investigate to a reasonable standard. In R. v Imperial Tobacco, the court determined that Canada has no duty of care to warn cigarette consumers or manufacturers of the hazards of tobacco products.
[25] In the case of Fullowka v. Pinkertons, 2010 SCC 5, [2010] 1 S.C.R. 132, the court determined that the territorial government did not owe a duty of care to miners to inspect a mine to a reasonable standard and order a cessation of operations if the mine were found to be unsafe. Similarly, in Reference re: Broome v Prince Edward Island, 2010 SCC 11, [2010] 1 S.C.R. 360, the Province did not owe a duty of care to children residing in a privately owned and operated residential home.
Position of the Plaintiff:
[26] The plaintiff submits that there is a prima facie duty of care owed between himself and HMQ on any of the following three bases: A statutory duty of care under the Police Services Act and the Mental Health Act. An analogous duty of care based on the Supreme Court of Canada decisions in Hill and Fullowka, or under the Anns/Cooper test.
[27] The plaintiff alleges that the combination of the Police Services Act and the Mental Health Act creates a prima facie statutory duty of care on HMQ to train police officers, through the Ontario Police College, to a reasonable standard when it comes to dealing with those who may be suffering from a mental illness. HMQ occupies the field of police training and has determined that the police officers it trains should have the authority to take those suffering from a mental illness for a medical assessment. As such, HMQ cannot train police officers negligently.
[28] The plaintiff argues that it should be plain and obvious that empowering a police officer to detain a person who may be suffering from mental illness requires a very specific level of training that is unique to other aspects of police training. In this current time and modern age, society demands that those suffering from mental illness be treated with dignity and respect. In providing police officers with the statutory authority to detain under the Mental Health Act, HMQ must owe a duty to those suffering from mental illness to adequately train police officers so as to ensure they have the skills necessary to determine whether a person should be taken for medical evaluation.
[29] The plaintiff does not suggest that HMQ owes a private law duty of care to the entire public in all manner of training. Rather, in empowering police officers with the authority to detain under the Mental Health Act, HMQ owes duty of care to those suffering from mental health issues, including the plaintiff, to train to a reasonable standard.
[30] Finally, the plaintiff submits that there is a statutory prima facie duty of care on HMQ that is not negated for policy considerations.
Is there a category of previous cases where a similar duty as between the plaintiff and the defendant has been recognized?
[31] For the purpose of this motion, the plaintiff accepts that that a similar duty of care has not been recognized in any previously decided case.
Is there a category of previous cases where an analogous duty between the defendant and the plaintiff has been recognized?
[32] There is no dispute that HMQ has a statutory duty under the Police Services Act to train police officers in Ontario.
[33] Police officers in Ontario have the authority under the Mental Health Act to take a person to an appropriate place for examination by a physician if that person is apparently suffering from a mental disorder that will likely result in harm to that person.
[34] In this action, the plaintiff claims that HMQ was negligent in the manner in which it trained a police officer regarding the exercise of his authority under the Mental Health Act to take the plaintiff for a medical examination.
[35] The plaintiff submits that previous cases have recognized an analogous duty as between the plaintiff and the Queen. However, the cases relied upon in support by the plaintiff are distinguishable.
[36] In Hill, the Supreme Court of Canada confirmed that the tort of negligent police investigation does exist in Canada. A clearly negligent police investigation of a suspect may cause harm to the suspect. That case involved the direct participation of the defendant in the investigation.
[37] Moreover, plaintiff’s counsel misapplies the facts in the case of Fullowka. In that case, the Supreme Court of Canada held that the government of the Northwest Territories owed a private law duty of care to prevent harm coming to miners during a strike. In Fullowka, the governing legislation was found under the Mining Safety Act, R.S.N.W.T., 1988, c.M-13. Moreover, the legislation provided the inspectors with the authority to act so as to prevent harm. Therefore, the inspectors had a duty to inspect the mine to a reasonable standard. Cromwell J. determined that the duty to inspect the mine meant that once the mining inspectors embark on their investigations, it is reasonable to think that they will exercise care in the way they carry them out. No such nexus exists here.
[38] The plaintiff submits that it is time to reconsider the issue and urges me to adopt a new approach to liability for the actions of HMQ based on the facts of this case and the interplay between the Police Services Act and the Mental Health Act. By analogy, the Mental Health Act provided a police officer with the authority to act so as to prevent harm. Therefore, HMQ owed the training duty of officers to the public at large.
[39] I am not persuaded by the plaintiff’s arguments. This is based on several grounds. I do not accept the plaintiff’s analogy that if individual police officers owe a duty of care to a particular suspect in the manner by which they conduct an investigation, the trainer of those police officers, being the Queen, owes a duty of care to the particular or specific suspect to train those police officers to a reasonable standard. If the police officer is found to have negligently investigated a suspect, but that same officer carried out his investigation as he was trained, HMQ, as responsible for the trainer of that officer would, by analogy, also be negligent.
[40] I accept all of Mr. Phelan’s submissions on behalf of the defendant. HMQ says that it does not owe a private law duty of care. HMQ further submits that the manner in which it trains police officers is a policy matter and is not actionable. I agree.
[41] The plaintiff’s allegations against HMQ fail to provide any basis for a private law duty of care. Further, the boilerplate allegations at paragraph 30 of the claim consist solely of conjecture, assumptions and/or speculation unsupported by any material facts sufficient to found a claim, or at all: Hunter, paras. 3-5.
[42] The Ontario Court of Appeal and the Superior Court have routinely struck out claims against HMQ or government authorities on motions to strike on the ground that no private law duty of care is owed: Williams v Canada (AG), 2009 ONCA 378, 95 O.R. (3d) 401; Eliopoulos v. Ontario (Minister of Health and Long-Term Care), [2006] 82 O.R. (3d) 321(C.A.), leave to appeal refused, [2011] S.C.C.A. No. 514; Wellington v. Ontario, 2011 ONCA 274, 105 O.R. (3d) 81, leave to appeal refused, [2011] S.C.C.A. No. 258; Barrs v. Halton (Regional) Police Service, 2019 ONSC 4403, [2019] O.J. No. 3885 (S.C.J.), McLean v. Toronto (City) Police Service, [2001] O.J. No. 2882 (S.C.).
[43] To be liable in negligence, the defendant must owe a private law duty of care to the plaintiff. Where the facts pleaded bring the plaintiff and the defendant within a relationship that has already been recognized as giving rise to a private law duty of care, the court need not go any further to determine whether a private law duty of care is owed. I find that there exists no private law duty of care to the plaintiff; by analogy or otherwise.
[44] It is one thing to argue that the Police Services Act gives the province the duty to train police officers it would be reasonable to think that the Ontario Police College would exercise care in the way in which it trained its officers to act under s. 17 of the Mental Health Act. It is another to suggest that this duty extends to the plaintiff, qua plaintiff in this case.
[45] I accept that a private law duty of care owed by the Ontario Police College to a private individual has never been recognized by the law. There are no facts pleaded that would give rise to a private law duty of care to the plaintiff, and even considering the novel issue advanced by the plaintiff, the claim should be struck on that basis.
[46] If the relationship is not one that falls within a settled category, I must determine whether a private law duty of care arises by applying the two-stage Anns/Cooper test as modified by the Supreme Court of Canada in Imperial Tobacco and the Court of Appeal in Wellington, at paras 15, 16.
If there is no prima facie duty established by statute or from a previous category of case or by analogy to a previous category of case, should a new category of duty be recognized under the Anns/Cooper analysis?
[47] Is there sufficient foreseeability and proximity to establish a prima facie duty of care? Under Anns/Cooper, the court is to consider the three-fold test: Whether the harm complained of was reasonably foreseeable; Whether there was sufficient proximity between the plaintiff and the defendant such that it would be fair and just to impose a duty of care on the defendant. If foreseeability and proximity are found, a prima facie duty has thus been established. The court should then go to a third step. There must be no residual policy reason for declining to impose such a duty of care.
[48] At times, it is difficult to reconcile some of those cases where courts have found a novel duty of care with those where no such duty was found. Much depends on the particular factual matrix of the case before the court. As stated by the Supreme Court of Canada in Cooper, at para. 27: “The underlying question is whether a duty of care should be imposed, taking into account all relevant factors disclosed in the circumstances.”
[49] It has long been established that the police, for example, do not owe a duty of care to individual members of the public. The police owe a general duty to the public as a whole and not to individuals.
[50] The first stage involves considering both foreseeability of the harm and proximity between the parties. Proximity and foreseeability are two aspects of one inquiry — the inquiry into whether the facts disclose a relationship that gives rise to a prima facie duty of care at common law. Foreseeability must be grounded in a relationship of sufficient closeness, or proximity, to make it just and reasonable to impose an obligation on one party to take reasonable care not to injure the other.
[51] The test for foreseeability asks whether the harm would be viewed by a reasonable person as being very likely to occur. Proximity, on the other hand, is used "to characterize the type of relationship in which a duty of care may arise". Two parties are proximate if their relationship is sufficiently close and direct that it is fair to require the defendant to be mindful of the plaintiff's legitimate interests: Wellington, at para. 37.
[52] I am persuaded that the harm that occurred to the plaintiff was not foreseeable by this defendant. The question in this case is whether it was foreseeable that: an indeterminate time after the plaintiff had been traffic-stopped by an Amherstburg police officer (who, it is presumed but not pleaded, received some training at some time at HMQ’s Ontario Police College), after the plaintiff had spoken with a U.S. police officer by phone while stopped by the Amherstburg police officer, after the plaintiff had received a traffic ticket and then been released by the Amherstburg police officer, after the plaintiff had at some point later driven erratically so as to attract the attention of another police officer who was never able to stop the plaintiff, who fled through a number of red lights, after the plaintiff had later parked his car in Milton, after the plaintiff had wandered to some train tracks, after the plaintiff at some time had tried to jump on a moving train, would then suffer injury as a result of his attempt to take matters into his own hands by jumping aboard a moving train.
[53] The four “failings” of the Police College, as alleged by the plaintiff at para. 30 of his claim are far too general, speculative and are merely bald assertions, unsupported by proper pleading of anything that would provide a specific connection to the particular plaintiff. They remain vague and unarticulated and incapable of asserting any conduct that could be construed as operational rather than policy: McLean, at paras 26, 27.
[54] It is true that police exist in order to serve the public. If the police are not adequately trained, it is surely reasonably foreseeable that harm would come to a member of the public, including the plaintiff. However, that duty is to the public at large and is not foreseeable to every situation arising from the actions of an officer unconnected or not proximate to the particular plaintiff.
[55] As the jurisprudence suggests, the factors which may satisfy the requirement of proximity are diverse and depend on the circumstances of the case. What is clear is that foreseeability is not enough to automatically establish proximity. Rather, in considering proximity, the courts have looked for a special relationship or special link between the plaintiff and the defendant.
[56] Additionally, courts have considered whether the law of negligence should be aimed at imposing a result that is fair to both parties and is also socially useful. It is true that s. 3 of the Police Services Act establishes a statutory duty to train police officers, while s. 17 of the Mental Health Act empowers officers to detain those who they deem to be suffering from mental health issues and are a danger to themselves or the public.
[57] In Imperial Tobacco, the Supreme Court noted that a private law duty of care may arise in two circumstances: (1) where the duty arises explicitly or by implication from the statutory scheme; or (2) where it arises from a series of specific interactions between the claimant and the government, where the government has, through its conduct, entered into a specific relationship with the plaintiff: Meekis, at paras. 95, 97.
Proximity:
[58] There must be a sufficient proximity between the plaintiff and HMQ such that it would be fair and just to impose a duty of care on HMQ.
[59] I find that the plaintiff fails under this heading.
[60] The enabling statute is the foundation of the proximity analysis. The Supreme Court has noted that it may be difficult to find sufficient proximity arising from the statute since most statutes are aimed at the public good and a private law duty would conflict with the public authority’s duty to the public.
[61] The Police Services Act provides that the Solicitor General shall operate the Police College for the training of members of police forces. Pursuant to O. Reg. 36/02 under the Police Services Act, every police officer must complete a Basic Constable Training Program within six months of her or his appointment. Under this legislative scheme, I agree with the defendant that HMQ does not owe a duty of care to this plaintiff in particular, but rather to the public as whole to provide training to police officers. There is no prima facie duty of care between HMQ and the plaintiff, and any claims in negligence must be struck. A plain reading of the Police Services Act negates any argument that the statutory provisions may give rise to a private law duty of care to the plaintiff. The statute and associated regulation only establish that all police in Ontario will receive training at the Ontario Police College.
[62] I observe that there is no pleading of a series of specific interactions between the plaintiff and HMQ, or any employee or agent at the Ontario Police College, where HMQ, through any agent or employee at the Ontario Police College has, through its conduct, entered into a specific relationship with the plaintiff sufficient to create a private law duty of care. There is no proximate relationship between HMQ and the plaintiff, as he was not known to HMQ at any time.
[63] In the absence of a general private law duty of care owed by HMQ to the plaintiff, the plaintiff has failed to plead facts on the basis of which it could be found that a special relationship of proximity existed. Rather the plaintiff was in the same position vis-à-vis the Ontario Police College as every other member of the public.
[64] Again, it is true that the Supreme Court of Canada recognized the special relationship that exists between the police and public. In the proper case, there may be good policy reasons to recognize the duty of care on police officers towards a suspect. Viewed at from a societal perspective, suspects may reasonably be expected to rely on the police to conduct their investigation in a competent, non-negligent manner.
[65] I accept that HMQ has no control over and is not responsible for the day-to-day activities of every police officer in the province. As revealed in the case of McLean, operating the Police College is a matter in which the decision-making involves consideration of social, political and economic factors.
[66] The broad decision making with respect to police training is a matter of policy akin to deciding whether to do building inspections (as in the Kamloops case) or what schedule of highway maintenance is appropriate (as in the Brown case).
[67] There are no allegations in the claim relating to specific failings in the actual monitoring system put into place or problems with the actual training process that would be the equivalent of the negligent inspection of a particular house being constructed (Kamloops) or the failure to respond to very specific reports of icy roads in a certain location (Brown).
[68] Despite the arguments of counsel, a novel approach to couple HMQ’s duty to train with the statutory authority of the police officers to detain does not establish a finding of proximity between the defendant and those civilians who are suffering from mental health issues. Importantly, in this case, the plaintiffs do not argue that HMQ owed a private law duty of care to the public in general in the manner it trains police officers. Rather, it is urged that HMQ owed a private law duty of care to a specific class of individuals, being the mentally ill, just as in Hill, where the Supreme Court of Canada held that police officers owed a duty of care to a specific subset of the public, being those suspected of a crime.
[69] I disagree with the plaintiff’s attempt to link the ubiquitous appreciation of those individuals in society suffering from mental health issue and who run into conflict with police with the expansion of a duty of care. There is no proximity between HMQ and the plaintiff, despite the fact that the defendant has given itself the responsibility to train police officers through the Police Services Act. I am not persuaded that to be fair and just and socially useful, proximity needs to be found in favour of the plaintiff or to do otherwise would be to put that specific class of individuals suffering from mental illness at risk.
[70] Even if the pleadings are read generously under an Anns/Cooper analysis, the claims in negligence must fail due to lack of foreseeability and proximity. See also the Crown Liabilities and Procedures Act, 2019 S.O. 2019 c. 7, Sched. 17, ss. 11, 31.
If a prima facie duty of care has been established, are there residual policy reasons for declining to impose such a duty?
[71] At this stage of the analysis, any policy considerations are not concerned with the relationship between the plaintiff and the defendant. Rather, the court considers the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. It is also at this stage of the test that the distinction between government policy, execution of that policy and operational decisions are to be considered. A government actor may be liable in negligence for the manner in which it executes or carries out the policy.
[72] Again, I agree with Mr. Phelan’s submissions on behalf of HMQ. Policy considerations do not support the recognition of the expansion of the duty of care as espoused by the plaintiff.
[73] The training of police officers is policy. Just because legislation provides authority for the HMQ to train officers does not mean that there is vicarious liability. For example, in McLean, a case where the plaintiff’s car skidded on an icy road, Molloy J. had occasion to state the following at para. 24:
[t]he decision of the Department of Highways as to when to switch from its summer maintenance schedule to the more rigorous winter schedule involved classic policy considerations...It was exempt from liability. However, the actual carrying out of maintenance was operational and therefore subject to a duty of care. Thus, there could be liability for negligence for things such as failing to respond in an appropriate manner to reports of icy conditions and requests for standing.
[74] There are also residual policy considerations which militate against the imposition of a duty of care between HMQ and the plaintiff.
[75] The creation of such a novel duty of care, between HMQ as creator of the training centre for all police in the province, and an individual visiting Canada stopped for a traffic infraction who later decides to jump onto a moving train, if such a novel duty of care were possible in the absence of any proximity or foreseeability; would make HMQ the vicarious insurer of all individuals who have dealings at any time with any police officer, from any police force in the province for whom HMQ is not responsible.
[76] The implication would also make HMQ the insurer of all police officers in the province, and their police service board employers, in respect of all material taught at the Ontario Police College, at all times.
[77] This would end up with HMQ being improperly joined in every tort action involving damages sought from police officers and their employing boards. In Wellington, at para. 44, the court stated:
There is now a well-established line of cases standing for the general proposition that public authorities, charged with making decisions in the general public interest, ought to be free to make those decisions without being subjected to a private law duty of care to specific members of the general public. Discretionary public duties of this nature are "not aimed at or geared to the protection of the private interests of specific individuals" and do "not give rise to a private law duty sufficient to ground an action in negligence": Eliopoulos v. Ontario (Minister of Health & Long Term Care) (2006), 82 O.R. (3d) 321 (Ont. C.A.), at para. 17; Williams, at paras. 29-30; Attis, at paras. 59-60; River Valley Poultry Farm Ltd. v. Canada (Attorney General) (2009), 2009 ONCA 326, 95 O.R. (3d) 1 (Ont. C.A.), at paras. 41-42.
[78] I would go further to opine that this approach should fail for reasons of public policy.
[79] I note that the striking of the claim against HMQ at this stage does not leave the plaintiff without a remedy. The plaintiff’s claim seeks exactly the same remedy of damages in tort against the only police officer with whom he dealt while in Canada, and damages vicariously from the relevant police services boards.
[80] I am also persuaded that this claim is barred as HMQ remains immune from claims in direct liability. HMQ has waived its immunity only to the extent of vicarious liability for a tort committed by a servant or agent: Crown Liability and Proceedings Act, 2019. See also McLean, at paras. 11, 14.
[81] Finally, I reject the submissions that the plaintiff ought to be granted leave to amend the Statement of Claim as discoveries have not yet occurred. The basis for this relief is premised on conjecture. Much of the rationale for leave to amend is without foundation. Respectfully, any such relief would be nothing short of a fishing expedition and would cast the net far afield.
[82] For all of the submissions advanced by counsel for HMQ, leave to amend is denied.
Conclusion:
[83] There is no basis pleaded for a claim against HMQ in vicarious liability, as there is no material fact alleged capable of supporting a tort by a servant or agent of HMQ capable of direct liability to the plaintiff. On all of the considerations advanced in this motion, there is no duty of care owed to the plaintiff and it is not plain and obvious that a reasonable cause of action lies. The claim against HMQ is struck.
Costs:
[84] If the parties cannot agree on costs, the defendant shall file submissions within 15 days of the release of this endorsement. The plaintiff shall file his response within 15 days of receipt of the defendant’s submissions. HMQ may file a brief reply within 10 days thereafter. These submissions shall not exceed three pages in length (not including Bills of Costs or Offers to Settle).
A.J. Goodman J.