COURT FILE NO.: CV 1597/21
DATE: 20221216
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMANDA VAN EVERY on her own behalf and as Litigation Administrator of the ESTATE OF LARRY REYNOLDS and as the Litigation Administrator of the ESTATE OF LYNN VAN EVERY, HELEN REYNOLDS, BRENDA REYNOLDS, DEBRA KNECHTEL, SANDRA HAMILTON, ELAINE VAN EVERY, CINDY ANN VAN EVERY STAATS and MICHAEL VAN EVERY
Plaintiffs
– and –
BRANTFORD POLICE SERVICES BOARD
Defendant
Mr. K. Egan, for the Plaintiffs
Mr. J. de Vries, for the Defendant/Moving Party
HEARD: July 25, 2022
JUSTICE M.D. MCARTHUR
ENDORSEMENT
INTRODUCTION
[1] The plaintiffs are the estates of Larry Reynolds and Lynn Van Every and the immediate family members of either Larry Reynolds and Lynn Van Every. They collectively seek damages of $1,100,000 against the defendant in negligence.
[2] On July 19, 2018 at around 7:00 am, three citizens called the defendant police service to report suspicious activity. They saw five male individuals moving in and around two vehicles and circling through a neighbourhood in the City of Brantford, where Larry Reynolds and Lynn Van Every resided together. Their son, Roger Van Every, had been arrested and charged as a result of a major drug raid about a month before. He was living on strict bail conditions at his parents’ home located at 10 Park Road South in Brantford.
[3] At about 8:00 am, Larry Reynolds and Lynn Van Every were shot and killed at their home by a masked gunman who fled in a waiting motor vehicle.
[4] The plaintiffs allege the defendant police service failed to respond to reports of suspicious activity made by members of the public.
[5] The plaintiffs allege that the defendant police service knew or ought to have known that suspicious activity should be investigated and monitored in order to maintain the safety of citizens.
[6] The plaintiffs allege the police service’s failure to promptly investigate the reports of suspicious activity caused or contributed to the deaths of Larry Reynolds and Lynn Van Every. Had the defendant adequately and effectively performed its statutory and common law duties, and responded and investigated the citizens’ concerns as reported, they would have discovered the five men were using a stolen vehicle and were carrying loaded handguns.
[7] The plaintiffs allege that adequate and effective policing would have prevented the murders.
[8] An internal investigation by the defendant determined that the failure to respond was due to a shortage of dispatch staff and insufficient supervision and training of the dispatch staff.
[9] The defendant brings this motion pursuant to Rule 21 seeking an order striking the statement of claim and amended statement of claim and dismissing the action on the basis that the amended statement of claim does not disclose a cause of action against the defendant.
The Amended Statement of Claim
[10] The plaintiffs’ amended statement of claim contains many amendments and additional allegations. For the purposes of these reasons, the amended statement of claim as of February 1, 2022 is attached to this ruling as Schedule A. The allegations most pertinent to this motion are contained in paragraphs 16, 17, 18, 19, 20, 21, 25, 26, 28, 29, 21, 32 and can be briefly summarized as follows:
a. concerned individuals close by Park Road South notified the defendant of suspicious activity and approached a police officer in the area. They reported that at least five persons clad in black were getting out of cars, were congregating on a sidewalk and having discussions in the neighbourhood in the vicinity of Park Road South;
b. the suspicious persons were all from the Greater Toronto Area and were planning to murder Roger Van Every who they believed was present at 10 Park Road South. At least two of the persons were carrying loaded guns in the vehicles, one which was a vehicle reported stolen;
c. had the police investigated in a timely manner and asked the caller for the licence numbers of the vehicles, the police would have discovered one of the vehicles was stolen. Had it acted, it would have discovered the loaded handguns thereby preventing the murders;
d. had the police responded to the citizen’s concern and directed a police patrol to the neighbourhood, the police would have seen vehicles illegally double-parked on the roadway and could have intervened and thereby prevented the murders;
e. general allegations of the defendant’s failure to respond or investigate with various particulars including that dispatchers failed to ask appropriate questions of callers with respect to the details of the suspicious activities and urgency of the situation. Other members of the defendant failed to meet the standard of care arising from their respective positions and acted with reckless disregard toward the plaintiffs. Such members acted in the performance of duties that lacked reasonable care, skill, ability and training to perform duties. In addition, they were unfit to perform duties and were not supervised appropriately to reasonably discharge their duties;
f. in view of the circumstances, the defendant did not promptly or appropriately investigate the suspicious activity that caused or contributed to the deaths of the deceased plaintiffs;
g. the defendant’s own internal investigation found that its failure to respond to the citizens reports was the result of human error on part of its employees; and
h. the criminal proceedings involving the murders are ongoing and subject to current publication bans.
ISSUES
[11] The issues are whether the amended statement of claim:
a. states any legally recognized claim by Larry Reynolds and Lynn Van Every against the defendant;
b. discloses any factual or legal basis for a private law duty of care between the defendant and Larry Reynolds and Lynn Van Every:
c. discloses any factual or legal basis for the foreseeability of harm to Larry Reynolds and Lynn Van Every resulting from any action or inaction of the defendant; and
d. discloses any factual or legal basis establishing a causal connection between any action or inaction of the defendant and the plaintiffs’ alleged damages.
POSITIONS OF THE PARTIES
[12] The defendant/moving party submits:
a. the plaintiffs’ claims fall outside the scope of private law duties of care that apply to police services and there are no allegations that the defendant knew the deceased plaintiffs were within a narrow class of potential victims of a possible crime or that the defendant was aware of the pending crime or the identity of its perpetrator(s); and
b. the statement of claim fails to articulate the basic elements of a claim in negligence because there are no pleadings that the specific harm to the deceased plaintiffs was foreseeable and no pleadings of negligence against the defendant.
[13] Rather, the defendant submits the plaintiffs’ claims are premised on supposed negligence of the defendant that only exist in the abstract and only concern the defendant’s duties to the public at large, which were not foreseeably related to the harm suffered by the plaintiffs. The defendant submits that either of these are sufficient grounds to strike the plaintiffs’ claims.
[14] The plaintiffs submit the amended statement of claim asserts the defendant owes a statutory and common law duty of care to individuals present in the communities within its jurisdiction to provide adequate and effective police services in a manner that is reasonable and prudent.
[15] The plaintiffs also submit that current legislation imposes on police services more expansively articulated positive duties to act including the duty to protect. They say the defendant failed to fulfill many of these statutory duties and thereby breached its duty of care to the deceased plaintiffs.
[16] These plaintiffs also submit they are members of a class of persons owed a duty of care by virtue of their proximity as residents of the particular neighbourhood from which the citizens reports emanated.
[17] The plaintiffs submit the defendant ought to have reasonably foreseen that area residents may be at risk of harm if the police did not investigate.
THE LAW
Rule 21.01(1)(b)
[18] Rule 21.01(1)(b) provides that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action and the judge may make an order or grant judgment accordingly.
[19] The test for a motion under this rule is whether it is plain and obvious that the plaintiff could not succeed if the matter were to proceed to trial. See Wellington v. Ontario, 2011 ONCA 274.
Public bodies and the private law duty of care
[20] There are two general scenarios where a duty of care exists between a private person and a public body: first, where a duty of care arises explicitly or by implication from a legislative scheme; and second, where a duty of care arises from interactions between a specific plaintiff and the government and is not negated by legislation. See R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para 43.
[21] A legislative scheme which is aimed at public good does not create a private law duty of care, even to a plaintiff who is affected by the scheme or would benefit from its proper implementation, unless it is demonstrated that “the legislature intended as a positive matter to create a private law duty notwithstanding that the scheme is aimed at promoting the public good.” See Wu v. Vancouver (City), 2019 BCCA 23, Canada (AG) v. Walsh 2016 NSCA 60 at para 65and Imperial Tobacco Limited, supra at para 44. Police services statutes are one of the legislative schemes aimed at public goods which do not implicitly create a private law duty of care. See Canada (AG) v. Walsh, supra at para 60.
[22] There are two limited circumstances where a police service has been found to owe a private duty of care, first, where the police have singled out a suspect for investigation and have a duty to carry out that investigation in a reasonable manner. This is the tort of negligent investigation.
[23] The second arises where the police have identified a narrow class of potential victims of a specific criminal threat and come under a duty to warn those potential victims. This is the duty to warn situation as in the case of Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, 1990 CanLll 6611. In the latter case, the police must have a pre-existing knowledge of a particular criminal or suspected criminal who is likely to commit a specific crime against a narrow class of potential victims of which the plaintiff is a member.
[24] The statutory and common law duties of a police service are owed to the public at large and do not create a duty of care between the police service and a private person. Police duties are properly reviewable through the public processes. See Wellington v. Ontario, supra, Conley v. Toronto (Police Services Board), 2018 ONCA 368, Jones v. The Attorney General of Canada (Royal Canadian Mounted Police) et al, 2018 NBCA 86 and Canada (AG) v. Walsh, 2016 NSCA 60.
Pleadings in negligence
[25] To plead a case in negligence, the plaintiff must allege sufficient facts to demonstrate:
a. that the defendant owed the plaintiffs a duty of care;
b. that the defendant’s behaviour breached the standard of care;
c. that the plaintiff sustained damage; and
d. that damage was caused, in fact and in law, by the defendant’s breach.
See Rankin’s Garage & Sales v. JJ, 2018 SCC 19, at para 71.
[26] In situations where the defendant did not create the risk that actually caused the harm and the alleged negligence consists of a failure to take adequate steps to prevent the harm, detailed pleadings must be advanced. It is not sufficient for the plaintiff to simply plead that the defendant was negligent and the plaintiff suffered harm. See Williams v. Ontario, 2009 ONCA 378, at para. 19.
[27] In relation to the duty of care, there must be a relationship between the defendant and the plaintiff arising from both a reasonable foreseeability of harm to the plaintiff if the defendant acts carelessly, and a relationship of sufficient proximity between the plaintiff and the defendant. See Rankin, supra, at para 23 and 16888782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, at para 29-33. Foreseeability requires the reasonable contemplation of both the specific harm in question and the persons who could suffer the harm.
[28] Negligence can only exist in the context of a specific relationship between the defendant and the plaintiffs. The relationship sets out the parameters what is reasonable. A duty of care cannot exist without reference to a particular plaintiff and defendant. There must be specific advance notice of the risk of specific harm to a specific class of persons. In other words, there must be a specific duty owed to a foreseeable plaintiff which is breached for negligence to arise. See Rankin, supra at paras 21-24, Piedra v. Copper Mesa Mining Corporation, 2011 ONCA 191, at para 53-56, Dobson (Litigation Guardian of) v. Dobson, 1999 CanLII 698 (SCC), [1999] 2SCR 753, at para 59 and Armstrong v. Royal Victoria Hospital, 2019 ONCA 96,3 at para 87.
ANALYSIS AND DISCUSSION
[29] In this case, the defendant did not create the risk that actually caused the harm. Accordingly, detailed pleadings must be articulate the failure(s) to take adequate steps to prevent the harm that amounts to negligence.
[30] Here, the plaintiffs plead the defendant’s failure to respond to the citizens’ reports was the result of human error on the part of the employees and, in view of the circumstances, the defendant did not promptly or appropriately investigate the suspicious activity, thereby causing or contributing to the deaths of Mr. Reynolds and Ms. Van Every.
[31] Here, the pleadings do not identify any interactions between the defendant and the plaintiffs that would create a duty of care. The pleadings do not identify the harm nor the defendants having advance notice of that harm to a specific class or person.
[32] The alleged breaches are not premised on a relationship of foreseeable harm between the plaintiffs and the defendant. Rather, the alleged breaches are negligence in the abstract. They are not premised on a duty of care to an individual but are instead premised on a duty owed to the public at large.
[33] The plaintiffs submit that this is a situation of foreseeable harm and a special relationship of proximity where the police have a duty to take reasonable steps to protect citizens from the consequences of foreseeable harm. The fulfillment of such a duty may require the police to warn potential victims of foreseeable harm or act in other ways such as by making an arrest. The plaintiffs submit support for this proposition is found in the case of Barrs v. Halton Regional Police Service, 2019 ONSC 4403, at paragraph 80.
[34] In Barrs, police had a specific individual suspect under active surveillance who had a significant criminal history and who was suspected of committing ongoing break and enters. He was observed driving a motor vehicle and stopping at various locations. The police were not aware what was he was doing or intending to do. Eventually, the suspect stopped and exited his vehicle and was observed by police to be wearing a wig and other suspicious clothing. Police soon heard a sound and discovered the plaintiff had been shot and injured by the suspect. The police did not have or ought to have had foreknowledge of the act or the plaintiff.
[35] In Barrs, on a summary judgment motion by the defendant police force, the court acknowledged the possibility of negligence but dismissed the claim. The court found the plaintiff was not in a special relationship of proximity with the police defendants at that stage of the surveillance. The decision was based on the evidence, or rather, a lack of evidence to establish a special relationship of proximity such that the police had a duty to take reasonable steps to protect citizens from the consequences of foreseeable harm.
[36] In the present case, whether the police had any basis to arrest those who were acting suspiciously is not relevant. Rather, the issue is whether the defendant had advance notice of the specific risk of harm to Mr. Reynolds and Ms. Van Every. In my view, the plaintiffs’ assertion that the defendant owed a duty of care to them as members of a neighbourhood or a community served by the defendant is plainly and obviously untenable.
Summary and Conclusions
[37] For these reasons, it is plain and obvious that the plaintiffs are unable to establish that the defendant owes the plaintiffs a duty of care.
[38] This court orders that the Statement of Claim is struck without leave to amend.
[39] If the parties cannot resolve the issue of costs between them within 30 days, each may make written submissions within 45 days of the date of this decision. Written submissions are not to exceed 3 pages, not including case law and legal references.
Justice M.D. McArthur
Released: December 16, 2022
COURT FILE NO.: CV 1597/21
DATE: 20221216
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMANDA VAN EVERY on her own behalf and as litigation administrator of the estate of LARRY REYNOLDS and as the litigation administrator of the estate of LYNN VAN EVERY, HELEN REYNOLDS, BRENDA REYNOLDS, DEBORAH KNECHTEL, SANDRA HAMILTON, ELAINE VAN EVERY, CINDY VAN EVEREY STATS and MICHAEL VAN EVERY
- and –
BRANTFORD POLICE SERVICES BOARD
ENDORSEMENT
McArthur J.
Released: December 16, 2022