Court File and Parties

COURT FILE NO.: CV-20-643167

DATE: 20210118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Masood Fariad,

Plaintiff/Responding Party

AND:

Toronto Police Services Board c/o Legal Services, Toronto Police Service

Defendant/Moving Party

BEFORE: Pollak J.

COUNSEL: Masood Fariad, for the Plaintiff/Responding Party, self-represented

Matthew Cornett, for the Defendant/Moving Party

HEARD: November 16, 2020

ENDORSEMENT

[1] The Moving Party Defendant Toronto Police Services Board (the "Board") brings this motion under Rules 21.01(1)(a) and (b) of the Rules of Civil Procedure for an order striking out the plaintiff's amended statement of claim, without leave to amend, and to dismiss the action on the ground that the pleadings disclose no reasonable cause of action and cannot be amended to fix this deficiency.

[2] The Plaintiff submits that:

(a) the Board’s motion should be dismissed for delay; and

(b) in the alternative, the Board’s motion should be dismissed because it has failed to meet the high threshold required to strike an action under Rule 21.

[3] I do not find there has been any undue delay by the Board to bring this motion.

[4] The Board submits the Claim is regarding the alleged failure of a Toronto Police Services (“TPS”) officer to investigate the Plaintiff’s complaint that he was assaulted by two passengers in his motor vehicle. As a result of the alleged failure, plaintiff claims damages in negligence in the amount of $275,000. It submits that reading the Claim generously, it is in substance that an officer with the TPS failed to investigate the Plaintiff’s complaint that he had been assaulted. The TPS owe no duty to individuals to investigate complaints, but rather one to the public at large, and cannot be held liable for negligence in these circumstances.

[5] The Plaintiff, however, disputes such a characterization and submits that his claim is not that an officer with the TPS did not investigate the Plaintiff’s complaint, but that he failed and/or refused to discharge his duties under the Police Services Act, R.S.O. 1990 (the “Act”), after investigating the complaint. The claim is that an officer with the TPS refused to act in accordance with the Act and/or in accordance with his duties under the Act, which includes laying charges. The Plaintiff submits, that an officer’s refusal to perform duties in accordance with the Act, is not in the interest of the public, and that as a result of the Board’s failure and/or negligence, to ensure that officers of the TPS perform their duties in accordance with the Act and in accordance with their duty towards the public at large, it is liable to the Plaintiff, for negligence.

[6] The issue is whether the plaintiff’s pleadings disclose a reasonable cause of Action and whether the plaintiff should be granted leave to amend his claim.

[7] I agree that the allegation in the claim is not that a TPS officer was negligent because he failed to adequately investigate the plaintiff’s complaint that he was assaulted. Rather, the allegation is that a TPS officer refused to Act and/or perform his duties under the Act by not laying charges after completing an investigation which resulted in evidence to support of the Plaintiff’s complaint. The negligence, it is alleged, stems from the Board’s failure to ensure that officers of the TPS carry out their duties in accordance with the Act.

[8] The Board submits that the allegations that the officer did not carry out his duties under the Act or did not act in good faith are not independent causes of action.

[9] The Board emphasizes that, although the tort of negligent investigation exists, it creates a duty for police to carry out a reasonable investigation only with respect to a person charged with a criminal offence. Our jurisprudence supports striking out pleadings and dismissing claims on the ground that there is no cause of action that may be brought by a victim related to an alleged failure by police to investigate crime, as this is a duty owed to the public as a whole. The Plaintiff's Claim is the type of claim that has been struck by our courts. The Board submits that it is plain and obvious that the plaintiff's amended claim discloses no reasonable cause of action and that it cannot be amended to fix this deficiency.

[10] The Plaintiff submits that his claim discloses a reasonable cause of action, as it is based on section 41 and/or section 42, of the Act.

[11] The Plaintiff submits that while the case law establishes the police do not owe a private law duty of care to victims of crime in relation to the investigation of alleged crimes, there is a duty owed to the public as a whole. He asserts that his claim is in relation to the consequences to the public at large and to the Plaintiff, of the refusal by the TPS officer to carrying out his duties under the Act, which includes but is not limited to laying charges for the purposes of including but not limited the public’s interest as a whole.

[12] The Plaintiff argues that this motion to strike should be dismissed because his action involves an “investigation of serious questions of law” or “where there is doubt on either the facts or the law”. Legally novel and complex issues should not be determined on a Rule 21 motion; novel and unusual cases must be allowed to proceed to trial where they can be tested on a full factual record. He submits that a failure to allow a novel but arguable claim to proceed, particularly where the issues raised deal with access to justice and the interests of the public and community at large, will bring the administration of justice into disrepute and further will compromise the public’s interests, in addition to the breach of public confidence of the TPS.

[13] The burden of proof on the Board to successfully strike any or all parts of the Plaintiff’s amended statement of claim is high, and it is submitted that the Board has not met the high onus.

[14] The Plaintiff argues that the TPS officer’s refusal to carry out his duties of laying charges may be based on what the TPS officer and/or the Board purport was the exercise of discretion, however this discretion must not be based on arbitrary and/or unreasonable factors. The Supreme Court of Canada has noted that while the exercise of discretion is fundamentally necessary for effective policing, the exercise of police discretion is not limitless, and police officers must justify their decision to exercise discretion rationally on a subjective and objective basis. Further, the exercise of discretion must be justified on the basis of objective factors, including the consideration of material circumstances and legal factors. The discretion must have been exercised honestly and transparently, and on the basis of valid and reasonable grounds.

[15] The Board relies on the case of Norris v. Gatien, 2001 CanLII 2486 (ON CA), wherein it was held that:

“It is reasonably clear from the statement of claim that the claim against Gatien and Nepean is not for damages for causing the death of Norris. Neither of them caused or contributed to his death on the facts as pleaded. Rather the plaintiffs' claim is for Acts and omissions of Gatien which are alleged to have occurred after Norris' death and which are said to have exacerbated the distress caused by the death of Norris.

This is so because the plaintiffs had no legal interest in the investigation or prosecution of Loranger; that investigation and prosecution were matters of public law and public interest. Nor had the plaintiffs any legal interest in the disciplinary proceedings taken against Loranger. Had Loranger been convicted on either or both charges, the plaintiffs, or some of them, may have derived some personal satisfaction from that conviction. That satisfaction, however, would have been a purely personal matter; it would have no reality in law. Nor did the failure to reach that verdict have any consequence for the appellants sounding in damages.”

[16] It may be that the Plaintiff has chosen the wrong forum to make his complaint against the TPS officer. However, I agree with Board that following the guidance and analysis of our Court of Appeal it is “plain and obvious this Claim has no reasonable chance of success” and that this is a clear case, where no amendment can cure this Claim. The motion to strike this Claim with no leave to amend is therefore granted.

Pollak J.

Date: January 18, 2021