COURT FILE NO.: 19-81996
DATE: 20210706
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: T.L., Plaintiff
AND
Ottawa Police Services, Keith Patrick, The Children’s Aid Society of Ottawa, Brian Lance and Cindy Lance, Defendants
BEFORE: The Honourable Justice C.T. Hackland
COUNSEL: Jeffrey H. Meleras, for the Plaintiff
Jeremy Wright, for the Defendants, Ottawa Police Service and Keith Patrick (moving parties)
No one appearing for The Children’s Aid Society of Ottawa, Brian Lance and Cindy Lance
HEARD: May 12, 2021 (by Zoom videoconference)
ENDORSEMENT
OVERVIEW
[1] The defendants the Ottawa Police Service (the OPS) and Cst. Keith Patrick bring this motion pursuant to Rule 21of the Rules of Civil Procedure seeking to strike out the allegations in the statement of claim and dismiss the action as against them on two grounds: (1) the action is barred by the applicable limitation period and (2) the allegations do not disclose a reasonable cause of action as no legal duty of care is owed by Cst. Patrick or the OPS to the plaintiff as a victim of crime in the conduct of a police investigation.
[2] The essential factual allegations contained in the Statement of Claim, which are presumed to be true for the purposes of this motion, are the following:
(1) In February 1998, when she was 13 years of age, the plaintiff was sexually assaulted by her babysitter, the defendant Brian Lance. She had previously been assaulted by him in the second half of 1997 when she was 12 years of age at a time when the defendants Brian and Cindy Lance resided in the same residence as the plaintiff and her mother.
(2) The plaintiff became pregnant as a result of this 1998 assault and gave birth to a child in November 1998, whom she gave up for adoption and thereafter had no contact with.
(3) In March of 1999 the plaintiff’s mother advised the plaintiff that she was going to ask the Lances to babysit her while she (the plaintiff’s mother) was out of town. At that point in time, the plaintiff told her mother of the prior assaults by Brian Lance and as a result her mother took her to the OPS.
(4) Following a police interview (March 1999) and subsequent investigation, it was decided that no charges would be warranted.
(5) The plaintiff turned 18 years of age in January 2003.
(6) In 2014, the plaintiff started proceedings against the defendant Brian Lance before the Criminal Injuries Compensation Board. Brian Lance was ultimately charged with sexual assaulting the plaintiff and other offences in June of 2017. He was ultimately convicted of these charges on September 10, 2018.
(7) This proceeding was commenced by the plaintiff on November 15, 2019.
Issues
[3] There are two issues to be decided on this motion: (a) whether the claim as against the OPS and Cst. Patrick is barred by operation of the Limitations Act, 2002; and, (b) further, and alternatively, whether the claims as against them disclose no reasonable cause of action and ought to be dismissed pursuant to Rule 21.01(b) of the Rules of Civil Procedure.
The Limitations Issue
[4] Pursuant to sections 4, 5 and 6 of the Limitations Act, S.O. 2002 chap.24, there is in Ontario a general two year limitation period which bars the commencement of a civil proceeding after two years from the date the claim was discovered. A claim is discovered on the day the plaintiff first knew of being injured by the act or omission of the defendant and there is a presumption that this occurs on the date the act or omission takes place. However, in the case of injury to a minor, as in this case, the limitation period does not run until the minor reaches her 18th birthday.
[5] The plaintiff turned 18 years of age in January 2003. She commenced proceedings for compensation for the sexual assault perpetrated by the defendant Lance before the Criminal Injuries Compensation Board in 2014 and criminal charges were pursued against Lance by the OPS in June of 2017. As noted, this proceeding was not commenced until November 2019. I find that the plaintiff’s claims could reasonably been discovered as of her 18th birthday, or at the time of the Criminal Injuries Compensation Board proceeding or the laying of the sexual assault charges in June 2017. If the two year limitation period applies to the allegations the plaintiff advances in this proceeding, it had expired before the commencement of this proceeding.
[6] However, the plaintiff submits this is a proceeding based on a sexual assault and accordingly she is entitled to rely on section 16 of the Limitations Act, which provides there is no limitation period for such claims. Sec. 16 provides:
No limitation period
16 (1) There is no limitation period in respect of,
(h) a proceeding based on a sexual assault;
(h.1) a proceeding based on any other misconduct of a sexual nature if, at the time of the misconduct, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the misconduct:
(i) the other person had charge of the person with the claim,
(ii) the other person was in a position of trust or authority in relation to the person with the claim,
(iii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;
(h.2) a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the assault:
(i) they had an intimate relationship,
(ii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;
(1.3) For greater certainty, clauses (1) (h), (h.1) and (h.2) are not limited in any way with respect to the claims that may be made in the proceeding in relation to the applicable act, which may include claims for negligence, for breach of fiduciary or any other duty or for vicarious liability. 2016, c. 2, Sched. 2, s. 4 (2).
[7] The OPS submits that the claim against them is not the type of claim enumerated in section 16 of the Limitations Act for which there is no limitation period, more specifically, the claim as against the OPS is not a claim of sexual assault as it relates to them (subparagraph (h)) nor is it a claim involving sexual misconduct with a minor as the Ottawa Police are not “the person who committed the misconduct” (subparagraph (h.1).
[8] The Plaintiff seeks a much broader interpretation of section 16. The plaintiff’s submission is this is “a proceeding based on a sexual assault” within the literal meaning of sec. 16(1)(h). It is also said that upon reviewing subsections (h.1) and (h.2), and particularly subparagraph 1(1.3), it can be seen that the investigating officer, the defendant Keith Patrick, falls within those provisions which are not limited to the actual perpetrator of the sexual assault.
[9] In my view sub-paragraph (1.3) clarifies that section 16 of the Limitations Act is not limited to proceedings against only the perpetrator of the sexual assault. The reference to vicarious liability makes this clear. A perpetrator can not be vicariously liable for his own conduct. The no limitation provision in section 16 is intended to include actions against third parties. The question to be answered is whether the non-perpetrator defendant was vicariously liable for the acts of the perpetrator who committed the sexual assault or owed a fiduciary duty to the victim or a duty of care in tort.
[10] Section 16 of the Limitations Act was considered in the case of Fox v. Narine, 2016 ONSC 6499 in which a resident of the defendant, which operated a shelter for battered women, was sexually assaulted by a person who gained unlawful entry to the premises. The resident subsequently died in circumstances unrelated to this event, but her estate pursued an action against the defendant for negligence in failing to provide adequate security in the residence. The plaintiff’s estate began the action more than two years after the event, creating limitation issues under both the Limitations Act and the Trustee Act. The Court held that the estate was entitled to rely on the ‘no limitation’ provision in section 16 of the Limitations Act in its negligence claim against the defendant. Justice Lederer stated at para. 8:
Neither party disputed the idea that this sub-clause [s.16(1.3)] was pointed at parties other than the perpetrator. A sexual assault is a criminal act. It cannot reasonably be proposed that before a person who carries out such an act can be civilly liable, he or she must have been negligent, in a fiduciary relationship with the victim, or owed the victim a duty. A perpetrator is directly involved and so cannot be vicariously liable for his or her own acts. It is when a third party stands in such a relationship to the victim that s. 16(1)(h) is extended such that there is no limitation period that applies. Thus, the question is whether the defendant, … was vicariously liable for the acts of the person who committed the assault, was in a fiduciary relationship with the victim…, or owed her a duty of care or any other duty.
[11] To summarize on the Limitations issue, I hold that the plaintiff would be entitled to rely on the no limitation provision in sec. 16 of the Limitations Act, if she is able to establish that she was owed a common law duty of care by the defendant Cst. Patrick in the circumstances of this case, that is to say, in the investigation he carried out. With respect to the OPS, it would be vicariously liable for any breaches of duty committed by Cst. Patrick or other actionable conduct on his part. It is therefore first necessary to determine the other issue on this motion, which is whether the law recognizes a common law duty of care owed to the plaintiff with respect to the criminal investigation carried out in relation to her sexual assault complaint.
Do the police owe a private law duty of care to the Plaintiff?
[12] A fair reading of the Amended Statement of Claim makes it clear that the action against Cst. Patrick is based on an allegedly negligent investigation of the plaintiff’s sexual assault complaint and the vicarious liability of the OPS for Cst. Patrick’s alleged negligence. This is clearly pleaded in paragraphs 3, 4, 8, 35, 44, 64-67, 70 and 80 of the Amended Statement of Claim.
[13] The OPS submits there is no cause of action that may be brought by a victim related to an alleged failure by police to investigate a crime, as this is a duty owed, not to individuals, but to the public as a whole. Further, there is no vicarious or other liability of a police officer’s employer to a victim for such an alleged failure to investigate crime by a police officer.
[14] I am of the opinion that the submission of the OPS is correct in law. There is long standing binding appellate authority in Ontario that no cause of action against the police is available to a victim of crime for negligent investigation on the part of the police, see Norris v. Gatien, (2001) 2001 CanLII 2486 (ON CA), 56 O.R. (3d) 441 (C.A.) and Wellington v. Ontario, 2011 ONCA 274.
[15] In Wellington, Sharpe J.A. summarized the relevant case law at paras 17 and 18:
[17] The appellants submit that the duty of care alleged by the respondents has already been excluded by a decision of this court. In Norris v. Gatien (2001), 2001 CanLII 2486 (ON CA), 56 O.R. (3d) 441 (C.A.), leave to appeal to SCC dismissed, [2002] S.C.C.A. No. 54, a cyclist was struck and killed by a motor vehicle driven by an OPP officer. The cyclist’s family sued the officer, the OPP and Mr. Gatien, the municipal police officer who had investigated the fatal accident. Against Gatien, the plaintiffs alleged that he negligently investigated the death, leading to the failure of the criminal prosecution against the OPP officer for impaired driving causing death and driving “over 80”. As in this case, the plaintiffs alleged that their emotional distress had been exacerbated by Gatien’s failure to conduct a proper investigation. Gatien successfully moved under Rule 21 to strike the claim as disclosing no cause of action.
[18] This court dismissed the appeal and upheld the order striking out the claim against Gatien. Writing for the court, Austin J.A. applied the test set out in Kamloops (City) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2, which corresponds closely to the current Cooper-Anns test. Austin J.A. concluded, at paras. 17-19, that the relationship between the parties did not give rise to a prima facie duty of care:
This is so because the plaintiffs had no legal interest in the investigation or prosecution of [the OPP officer]; 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 [the OPP officer]. Had [the OPP officer] 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] Sharpe J.A. concluded with this observation “while the police owe a duty of care to a particular suspect under investigation (see Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 and Beckstead v. Ottawa (City) Chief of Police, 1997 CanLII 1583 (ON CA), 1997 37 O.R.(3d) 62 (C.A.), and to warn a narrow and distinct group of potential victims of a specific threat (see Jane Doe v. Metropolitan Toronto Commissioners of Police, (1990) 1990 CanLII 6611 (ON SC), 40 O.A.C. 161), there is now a long list of decisions rejecting the proposition that the police owe victims of crime and their families a private law duty of care in relation to the investigation of alleged crimes: (citations omitted).” The Court of Appeal found in Wellington that the police (the SIU) did not owe a duty of care to the family of the victim of a police shooting with respect to the investigation they conducted, the policy reason being… “recognizing a duty of care in favour of victims and their families could interfere with the SIU heeding its primary duty to the public at large.”
[17] The law is also well settled that it is not necessary to perform the Cooper-Anns analysis to determine the existence of a duty of care if the matter has already been decided by binding appellate authority, see Wellington at para.16. That is the situation in the present case so far as binding appellate authorities have decided that police owe no private law duty of care to victims of crime and their families in regard to the investigation of crime, rather they owe a duty to the public at large.
[18] The plaintiff also suggests that she has ‘impliedly’ pleaded the tort of misfeasance in public office against Cst. Patrick, relying on para. 71 of the Amended Statement of Claim. Paragraph 71 states: “Tanya pleads that the Defendants, Ottawa Police Services and Keith Patrick breached their non-delegable duties including the duty to protect the best interests of Tanya.” I observe that there is no mention in paragraph 71 or elsewhere in the pleading of ‘misfeasance in public office’. Paragraph 71 does not plead the elements of misfeasance in public office, which is an intentional tort that requires deliberate unlawful conduct as well as awareness that the conduct is unlawful and likely to harm the plaintiff, see Odhavji Estate v. Woodhouse, 2003 SCC 69. There is no basis for the assertion that it was the officer’s duty to “protect the best interests of Tanya”. This reference presumably refers to the conduct of the investigation of Tanya’s complaint and not to the assault itself which occurred over a year prior to the matter being reported to police.
[19] The Plaintiff places considerable reliance on a recent Alberta decision, Rennalls v. Tettey, 2021 ABQB 1. I find that Rennalls is distinguishable from the present case and the court’s reasoning does not assist the plaintiff.
[20] In Rennalls the plaintiff sued the Calgary Police for the negligent handling of her sexual assault complaint. Despite determining that there were reasonable and probable grounds to charge the perpetrator and despite obtaining a warrant for his arrest, the police failed to arrest him for a period of four and a half years after the assault. These unexplained delays resulted in the criminal proceedings being stayed.
[21] The hearing judge, Devlin J, in very careful reasons, concluded that the plaintiff’s claim was a novel claim and it was not ‘plain and obvious’ that it could not succeed and he therefore dismissed the application of the police to strike the claim as disclosing no reasonable cause of action.
[22] Justice Devlin accepted the plaintiff’s submission that her complaint was not about negligence in any aspect of the police investigation, rather it was about the police failing to bring the claim before the courts when a judicial officer had issued a warrant for the perpetrator’s arrest. His careful analysis of the jurisprudence reflects that he accepted the appellate jurisprudence in most of the common law provinces that police do not owe a private law duty of care to victims of crime and their families in relation to police investigations. After an extensive review of cases on this subject Devlin J. observed at para 38, “Alberta authority is thus consistent with decisions across the country rejecting negligent investigation claims brought by complainants.”
[23] Justice Devlin distinguished cases involving investigative discretion where no private law duty is imposed on police to the facts of Rennalls where police failed to carry out their statutory duty to execute an arrest warrant. He explained at paras 102-103:
[102] Rather, I find that the facts pled by Rennalls more closely resemble the situation in Odhavji. In both instances, the police were under defined and explicit legal obligations to do certain things as requirements of their office. In both they failed to do so, and in both the Chief of Police failed to adequately supervise compliance with these obligations. Rennalls has not pled that CPS officers advertently chose not to execute the warrant in her case. However, the crass obviousness of the police default, and the near total absence of a conceivable explanation for that default, bring her case much closer to a situation of intentional misfeasance than to a discretionary error in investigative judgement. To be clear, I am not finding that the police acted intentionally in this case. The foregoing is simply to observe that the facts before the Court bear greater similarity to those in Odhavji, where a duty of care in negligence was found to be arguable, than those in which a duty to investigate carefully has been rejected.
[103] The Ontario Court of Appeal went to some pain in Wellington to emphasize that Odhavji did not permit a suit for negligent investigation, but only for negligence in relation to intentional misfeasance in office: Wellington at paras 22-28. There is no doubt that Odhavji was not intended to create liability where no willful wrongdoing is found. However, where the allegedly wrongful police conduct moves away from mistakes in discretionary investigative steps and more towards the failure to execute defined obligations, the Supreme Court’s decision to permit a suit against the Chief of Police for negligent supervision of his officers takes on greater significance. That very much describes the facts pled in this case.
[24] Justice Devlin summarized his conclusion at para. 109 of Rennalls:
[109] The principles protecting police investigative discretion from private law obligations to complainants do not preclude finding a duty of care in this case. This is not a claim of negligent investigative in the normal sense. On the facts as pled, CPS sabotaged its own, judicially confirmed investigative outcome, in a straightforward but serious criminal case, through a baffling level of negligence. As such, the facts pled have more in common with the Jane Doe and Odhavji lines of authority than the classic investigative negligence claims brought in cases like Wellington and Kilgour.
[25] In the present case, the police were not made aware of the sexual assault for over a year following the events and the plaintiff acknowledges in her pleading that she initially provided the police with false information as to the identity of the father of her child. The police ultimately and belatedly proceeded to further investigate and prosecute the perpetrator. This would appear from the Statement of Claim to be a classic case involving delay and alleged negligence in the exercise of police investigative discretion and to fall squarely within the established authorities that preclude a private law duty of care.
[26] Another recent decision similar to the present case is Fariad v. Toronto Police Services Board, 2021 ONSC 374. The plaintiff sued the Toronto Police Service arising out of an assault he suffered at the hands of two passengers in his motor vehicle. The allegation was that the police officer failed to perform his duties under the Police Services Act by not laying charges after completing an investigation which resulted in evidence to support the plaintiff’s complaint. The allegation against the Police Services Board was that it failed to ensure that officers carried out their duties under the Act. Pollock J. concluded, applying the Court of Appeal’s decision in Norris v. Gatien, that it was “clear and obvious this claim has no chance of success” and proceeded to strike the claim without leave to amend.
Disposition
[27] In the present case, the plaintiff asserts a claim against the investigating officer for negligence in the investigation of her sexual assault complaint and against the OPS for failing to ensure the officer carried out his duties under the Police Services Act. It is pleaded that this resulted in a delay in the prosecution of the perpetrator (the defendant Lance), which caused the plaintiff mental distress and contributed to serious personal problems which arose during her adolescent years. For the foregoing reasons I find the investigating officer and the OPS did not owe the plaintiff a private law duty of care in this investigation. It follows that it is clear and obvious the plaintiff’s claim can not succeed and it is also statute barred as the plaintiff is not, in the absence of a legally recognized duty, entitled to rely on sec. 16 of the Limitations Act.
[28] The motion to strike the claim against Cst. Patrick and the Ottawa Police Service is granted, without leave to amend. If these defendants wish to seek costs, they are to provide a concise written submission within 2 weeks of the release of this endorsement and the plaintiff is to respond within 2 weeks of receiving the defendant’s submission.
Date: July 6, 2021
COURT FILE NO.: 19-81996
DATE: 20210706
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: T.L., Plaintiff
AND
Ottawa Police Services, Keith Patrick, The Children’s Aid Society of Ottawa, Brian Lance and Cindy Lance, Defendants
COUNSEL: Jeffrey H. Meleras, for the Plaintiff
Jeremy Wright, for the Defendants, Ottawa Police Service and Keith Patrick (moving parties)
No one appearing for The Children’s Aid Society of Ottawa, Brian Lance and Cindy Lance
ENDORSEMENT
Justice Charles T. Hackland
Released: July 6, 2021