Ruling on Motion to Strike Plaintiff’s Claim

Court File No.: CV-23-91495
Date: 2025/07/04
Ontario Superior Court of Justice
Between:
Tanya Locke, Plaintiff
-and-
Ottawa Police Services and Keith Patrick, Defendants

Before: Justice A. Doyle
Counsel:

• Jeffrey H. Meleras, for the Plaintiff
• Michelle Doody and Sam Campbell, for the Defendants
  Heard: June 20, 2025

Introduction

[1] The defendants, Ottawa Police Services (OPS) and Keith Patrick, have brought a motion to strike the statement of claim which alleges misfeasance in public office without leave to amend and to dismiss the action against the defendants. They rely on the Limitations Act, 2002, SO 2002, c 24, Sch B (“Limitations Act”), and argue that the claim discloses no reasonable cause of action. They also submit that this claim is an abuse of process as there was a previous ruling which dismissed a previous action against the same defendants based on a claim of negligent police investigation (the “First Action”).

[2] The plaintiff, Tania Locke, opposes the motion and argues that her claim is based on police conduct that was seriously and severely inadequate, constituting misfeasance in public office. She submits the defendants fell far short of their legal duties as public officers.

[3] One of the reasons that sexual assault charges were not laid was because the investigating officer found that the plaintiff had consented to the sexual assaults by an adult, despite her being only 12 and 13 years old at the time. Also, she submits the police conduct is captured by the exception under s. 16 of the Limitations Act because the defendants were in a position of trust or authority over her and/or the plaintiff was financially, emotionally, physically or otherwise dependent on them. The plaintiff pleads that she was owed a duty of care.

[4] For the reasons that follow, the defendants’ motion is dismissed.

Background

[5] The facts alleged by the plaintiff are not largely in dispute. The plaintiff was born in January 1985. Brian and Cindy Lance (together, the “Lances”), who are non-parties to the action, came to live with the plaintiff in late summer of 1997 when she was 12 years old.

[6] The plaintiff alleges that commencing in the second half of 1997, she was repeatedly sexually assaulted by Mr. Lance, and on two occasions, by Ms. Lance. The plaintiff indicates that as a result of a sexual assault in February 1998, when the Lances were babysitting her, she became pregnant with her son, born November 21, 1998, who she gave up for adoption. She has had no further contact with her son.

[7] No further sexual assault is alleged to have occurred after that date.

[8] In March 1999, the plaintiff’s mother told the plaintiff that she was going to ask Mr. Lance to babysit her while she was out of town. The plaintiff told her mother of the sexual assaults and her mother took her to the OPS.

[9] In March 1999, the plaintiff was interviewed by the OPS with a social worker of the Children’s Aid Society (CAS) present. The plaintiff acknowledged that she made up a name for her child’s father and said the father was somebody at school.

[10] In September 1999, the plaintiff told her mother that the real father of her child was Mr. Lance. This was reported to the CAS and the police. Mr. Lance denied the assault, asserted that he was sterile and offered to take a polygraph but refused to provide a DNA sample.

[11] Following the report, the plaintiff was advised by the investigating officer Keith Patrick (“Officer Patrick”) that a charge would not be warranted due to the plaintiff’s lack of credibility and because she consented to the sexual activity. She would have been 12 and 13 years old when the allegations occurred.

[12] In another videotaped interview with a CAS worker present, she admitted that Mr. Lance was her child’s father.

[13] In 2007, the plaintiff was told the videotaped interview no longer existed. Eventually, she learned that the videotaped interview still existed on June 21, 2017.

[14] In 2014, the plaintiff applied for benefits through the Criminal Injuries Compensation Board.

[15] Mr. Lance was ultimately charged with sexual assault against the plaintiff in June 2017 and convicted on September 10, 2018.

[16] On March 30, 1999, as a result of a complaint made by the plaintiff’s mother to the CAS, the plaintiff was apprehended by the OPS and brought to a group home.

[17] The plaintiff, herself, was charged in December 1999 with criminal charges.

[18] In November 2002, she was arrested as a youth and given six months in closed custody.

[19] The plaintiff turned 18 in January 2003.

[20] On November 15, 2019, the plaintiff commenced the First Action. In the First Action, the plaintiff sued the OPS, Officer Patrick, the CAS and the Lances.

[21] On June 16, 2021, Hackland J. dismissed the First Action without leave to amend. He found that the action was statute-barred and that there was no cause of action against the police available to a victim of crime for negligent investigation on the part of the police: T.L. v. Ottawa Police Services et al., 2021 ONSC 4753. He relied on Norris v. Gatien and Wellington v. Ontario, 2011 ONCA 274.

[22] As summarized by Hackland J., in Wellington, Sharpe J.A. restated that the relationship between the parties did not give rise to a prima facie duty of care because the “plaintiffs [have] no legal interest in the investigation or prosecution [as they] were matters of public law and public interest”: at para. 18, citing Kamloops (City) v. Nielson.

[23] On February 28, 2023, the plaintiff commenced this action against only the OPS and Officer Patrick based on misfeasance in public office. A statement of defence has not been filed.

[24] The plaintiff pleads that had Mr. Lance been prosecuted in 1999 when the OPS conducted its first investigation, and had she been believed, then she would have had the support and assistance afforded to victims of sexual assault. She pleads that this lack of support and the defendants’ delay in moving forward with the prosecution caused her, as a victim and a minor who suffered significant trauma, to be led down a downward spiral, which commenced in her teenage years.

Issues

[25] The court must determine the following three issues:

1. Is this action statute-barred by the Limitations Act?
2. Is there a reasonable cause of action?
3. Is this an abuse of process?

Defendants’ Position

[26] The defendants submit that the facts set out in the statement of claim repeat the same facts in the statement of claim in the First Action. Much of the statement of claim repeats allegations of negligent investigation by the defendants.

[27] The only difference in the statement of claim is that the plaintiff has raised a new cause of action of misfeasance in public office. The only other fact that is pleaded is the allegation that the plaintiff was apprehended by the OPS in 1999.

[28] The defendants claim that it should be struck because the claim is statute-barred, and the case does not fall in any of the exceptions set out in s. 16 of the Limitations Act.

[29] The statement of claim does not set out a reasonable cause of action and should be struck.

[30] It should be dismissed pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”) as it fails to plead the requisite elements of misfeasance in public office and an alleged breach of duty.

[31] Finally, the defendants argue that this action is an abuse of process and should be dismissed pursuant to rr. 21.01(3)(d) or 25.11 of the Rules. The plaintiff is attempting to relitigate the ruling of Hackland J., which was appealed, but later abandoned.

[32] In his ruling in the First Action, Hackland J. found that the defendants did not owe a private duty of care to the plaintiff as a claim cannot be made based on the police’s negligent investigation, that the action was statute-barred and that the plaintiff could not rely on s. 16 of the Limitations Act.

[33] By bringing this action, the plaintiff is attempting to relitigate the findings of Hackland J. and her latest statement of claim is an abuse of process.

Plaintiff’s Position

[34] The plaintiff accepts that the court has ruled that she cannot make a claim against the OPS for negligent investigation and that 95 percent of the facts pleaded in the First Action are repeated in the statement of claim before the court.

[35] Nevertheless, paragraph 50 of the statement of claim sets out facts that a trier of fact could use to determine that the elements of the tort of misfeasance in public office have been made out.

[36] It is clear from the facts pleaded that CAS case workers documented what she disclosed and that Officer Patrick concluded that something had happened, but he doubted her credibility and believed that she consented to the sexual activity, even though she could not consent as she was only 12 and 13 years old at the time and Mr. Lance was an adult.

[37] Officer Patrick had contacted third parties as part of the investigation, including her friends and CAS workers. The defendants had corroborating statements from three other CAS workers.

[38] The decision not to charge Mr. Lance on the basis that a 12- or 13-year-old could consent to sex with an adult is a breach of the OPS duty of care and constitutes withholding of services under the Police Services Act, RSO 1990, c P.15 (“PSA”).

[39] As a result of the OPS’s failure to charge Mr. Lance at the time, the plaintiff experienced great fear and humiliation. She indicates that the actions of the defendants satisfy the requirements of the tort of misfeasance in public office.

[40] She also alleges that following the interview with the OPS, she began to join the wrong crowd and participated in dangerous behaviour.

[41] Paragraph 50(b) of the statement of claim pleads that the defendants knew their acts and omissions would harm the plaintiff.

[42] Further, it is not plain and obvious that a trier of fact would not say that the police are not in a position of trust or authority.

[43] Moreover, the exception under s. 16 of the Limitations Act applies here as the defendant does not need to be the perpetrator of the sexual assault for the exception to apply. Specifically, under s. 16(1)(h.1) where a proceeding is based on any other misconduct of a sexual nature if, at the time of the misconduct, the plaintiff was a minor, and the plaintiff was “financially, emotionally, physically or otherwise dependent” on the defendant, there is no limitation period.

[44] The plaintiff continues to experience psychological and emotional disturbance 27 years later.

Analysis

Introduction

[45] The plaintiff indicates that if her initial complaint had been taken seriously and the OPS’s investigation had been properly conducted, Mr. Lance would have been charged and the uncertainty and shame she had to live through during her teenage years would have been reduced or eliminated. The plaintiff’s claim sets out components of negligent investigation and refers to a breach of fiduciary duty, both of which the plaintiff concedes are not tenable in this claim.

[46] However, the statement of claim nevertheless sets out a reasonable cause of action.

[47] Specifically, the plaintiff pleads in paragraph 50 of the statement of claim that the defendants failed to carry out their obligation under the PSA knowing that she had been sexually assaulted by Mr. Lance, and that they went so far as to advise that charges would not be laid because she was not credible, had initially misrepresented the identity of her child’s father and had consented to the sexual activity with Mr. Lance, who was an adult, when she was 12 and 13 years old.

[48] For the reasons articulated below, the court finds that this action is not statute-barred as it could fall in the exception set out in s. 16 of the Limitations Act.

[49] In a claim of negligent investigation, the law is clear that the defendants would not owe the plaintiff a duty of care pursuant to the obligations on the police force and its members.

[50] The statement of claim alleges negligent investigation of the defendants which is not a proper claim but serves as part of the narrative for the tort of misfeasance in public office.

[51] The plaintiff has the burden to establish the rigorous requirements of the tort of misfeasance in public office. Based on the allegations set out in the statement of claim, she has pleaded the elements of the tort, that is: an unlawful breach of the PSA; the investigating officer was aware that his conduct was unlawful; that his conduct was intentional and deliberate; there was a failure to discharge his obligation; and there was a subjective awareness that harm to the plaintiff was a likely consequence of the alleged misconduct.

[52] It may be that after pleadings are exchanged and discoveries have taken place the evidence may fall short for the plaintiff to succeed in this claim which could give rise to a summary judgment motion.

[53] However, at this initial stage of the proceeding, the court finds that this claim fits within s. 16 of the Limitations Act, which sets out the elements of the tort, thereby setting out a reasonable cause of action and is distinguishable from the previous ruling and therefore is not an abuse of process, nor frivolous or vexatious.

Issue #1: Is this action statute-barred by the Limitations Act?

Legal Framework

[54] Pursuant to ss. 4, 5 and 6 of the Limitations Act, there is a two-year limitation period which bars the commencement of a civil proceeding after two years from the date a 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, the limitation period does not run until the minor reaches their 18th birthday.

[55] There is also an exception to the limitation period for proceedings based on a sexual assault; or any other misconduct of a sexual nature or assault, if at the time of the misconduct, the plaintiff was a minor. Section 16 of the Limitations Act provides:

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).

Discussion

[56] Although the claim before Hackland J. in the First Action was based on a claim of negligent investigation, his analysis on the limitations issue is instructive and relevant.

[57] In the First Action, the defendants submitted that the claim was not the type of claim enumerated in s. 16 of the Limitations Act for which there is no limitation period, as the claim against the OPS was not a claim of sexual assault as it related to them (s. 16(1)(h)), nor was it a claim involving sexual misconduct with a minor as the OPS was not “the person who committed the misconduct” (s. 16(1)(h.1)).

[58] The plaintiff sought a broader interpretation of s. 16, relying on the broad wording of clauses (h), (h.1) and (h.2) and subsection (1.3).

[59] Justice Hackland held that pursuant to subsection (1.3), the court must determine whether the non-perpetrator defendant was vicariously liable for the acts of the perpetrator who committed the sexual assault, and owed a fiduciary duty to the victim or a duty of care in tort.

[60] Justice Hackland considered Fox v. Narine, 2016 ONSC 6499, where the plaintiff was sexually assaulted by a resident of the defendant, who operated a shelter for battered women. The estate of the plaintiff brought an action against the defendant for negligence in failing to provide adequate security in the residence. The court held that the estate was entitled to rely on s. 16 of the Limitations Act in its negligence claim against the defendant. Justice Lederer stated in Fox, at para. 8:

Neither party disputed the idea that this sub-clause 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, Anduhyaun Inc., was vicariously liable for the acts of the person who committed the assault (the defendant, Navin Narine), was in a fiduciary relationship with the victim (Cheyenne Santana Marie Fox), or owed her a duty of care or any other duty.

[61] Relying on the above decision, Hackland J. went on to consider whether Officer Patrick owed a common law duty of care to the plaintiff with respect to the criminal investigation carried out in relation to her sexual assault complaint. Justice Hackland found that he did not.

[62] At para. 13, Hackland J. found that 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. See also Norris v. Gatien; Wellington v. Ontario, 2011 ONCA 274.

[63] That is, he found that the 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: at para. 17.

[64] At para. 18, Hackland J. found that the tort of misfeasance in public office was not properly pleaded and observed that this tort 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 also Odhavji Estate v. Woodhouse, 2003 SCC 69, at para. 32.

[65] At paras. 19-24, Hackland J. reviewed the decision of Rennalls v. Tettey, 2021 ABQB 1, where in a claim against the Calgary police, Devlin J. found that despite determining there were reasonable and probable grounds to charge the perpetrator, and despite obtaining a warrant for his arrest, the police failed to arrest the perpetrator for a period of four and a half years after the assault. Justice Devlin found that even though the plaintiff’s claim was a novel claim, it was not “plain and obvious” that it could not succeed. Justice Devlin dismissed the police’s application to strike the claim as disclosing no reasonable cause of action. That claim was not based on a negligent police investigation but rather based on the police’s failure to execute the warrant of arrest; the police had failed to carry out its statutory duty to execute the warrant.

[66] Justice Devlin’s findings in Rennalls are explained at paras. 102-103 of that decision:

[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.

[67] Further, at para. 109 of Rennalls, Devlin J. summarized:

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.

[68] At para. 25, Hackland J. ultimately distinguished the case from Rennalls, finding that the case before him “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.”

[69] Moreover, at para. 26, Hackland J. referred to Fariad v. Toronto Police Services Board, 2021 ONSC 374, where Pollock J., relying on Norris, found there was no chance of success on a claim that the police officer failed to perform his duties under the PSA by not laying charges after completing an investigation which resulted in evidence to support the plaintiff’s complaint.

[70] Accordingly, Hackland J. dismissed the claim in the First Action against the investigating officer for negligence in the investigation of the plaintiff’s sexual assault complaint. He found that the OPS did not owe the plaintiff a private law duty of care in the investigation. He also dismissed the claim against the OPS for failing to ensure the officer carried out his duties under the PSA as the investigating officer. In addition, Hackland J. found that “It follows that it is clear and obvious the plaintiff’s claim cannot 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”: at para. 27.

Case at Bar

[71] This claim is based on misfeasance in public office by Officer Patrick and vicarious liability on the OPS for his misfeasance, and comes within the purview of s. 16(1.3) of the Limitations Act. The court finds that the plaintiff was owed a duty of care.

[72] In this case, the officer’s decision not to proceed with charges based, in part, on the ground that the plaintiff would have consented to the sexual assault as a minor, in my view, touches on the realm of misfeasance. In addition, Mr. Lance was an adult and in a position of loco parentis as he was living with the plaintiff at the time of the assaults.

[73] A review of Odhavji is helpful. Inthat case, after a fatality, the Special Investigation Unit (SIU) began an investigation and the officers involved in the incident did not comply with the SIU’s instructions to remain segregated, attend interviews on the same day and provide evidence in a timely manner. Section 113(9) of the PSA imposed a statutory duty on the officers to cooperate with SIU investigations and s. 41(1) imposed a duty on the chief of police to ensure that the officers complied with their duties under the Act.

[74] The Supreme Court of Canada in Odhavji held that a failure of a public officer to perform a statutory duty could constitute misfeasance in public office. The Court stated that the tort of misfeasance in public office is an intentional tort whose distinguishing elements are twofold: deliberate unlawful conduct in the exercise of public functions; and awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, the 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: at para. 32.

[75] Applying this framework, the Court held that if the facts were taken as pleaded in the Appellant’s statement of claim, it was not plain and obvious that the actions for misfeasance in public office against the police officers and chief would fail: at para. 42.

[76] Here, the plaintiff pleads the defendants breached ss. 41(1)(b), 80(1) and 81(2) of the PSA and these obligations go directly to the defendants’ legal duty. These provisions read:

41 (1) The duties of a chief of police include,

(a) in the case of a municipal police force, administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the board under subsection 31 (1);

(b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force;

(c) ensuring that the police force provides community-oriented police services;

(d) administering the complaints system in accordance with Part V.

80 (1) A police officer is guilty of misconduct if he or she,

(a) commits an offence described in a prescribed code of conduct;

(b) contravenes section 46 (political activity);

(c) engages in an activity that contravenes subsection 49 (1) (secondary activities) without the permission of his or her chief of police or, in the case of a municipal chief of police, without the permission of the board, being aware that the activity may contravene that subsection;

(d) contravenes subsection 55 (5) (resignation during emergency);

(e) commits an offence described in subsection 79 (1) or (2) (offences, complaints);

(f) contravenes section 81 (inducing misconduct, withholding services);

(g) contravenes section 117 (trade union membership);

(h) deals with personal property, other than money or a firearm, in a manner that is not consistent with section 132;

(i) deals with money in a manner that is not consistent with section 133;

(j) deals with a firearm in a manner that is not consistent with section 134;

(k) contravenes a regulation made under paragraph 15 (equipment), 16 (use of force), 17 (standards of dress, police uniforms), 20 (police pursuits) or 21 (records) of subsection 135 (1).

81 (2) No member of a police force shall withhold his or her services.

[77] The defendants argue that there was no withholding of service to the extent as was in Rennalls and there was no egregious conduct. Rather, the investigation may have been inadequate, but not, as Devlin J. found in Rennalls, an egregious police default without an explanation: at para. 102.

[78] However, like in Rennalls, where the police failed to execute a warrant that the police were statutorily obliged to carry out, in this case, the trier of fact could find that the police had reasonable and probable grounds to arrest Mr. Lance and charge him.

[79] Section 80(1)(a) of the PSA refers to police officers’ code of conduct which generally deals with the obligation to exercise their duties in good faith in accordance with the law including the Charter of Rights and Freedoms.

[80] The police have general policies regarding their code of conduct that sets out their responsibilities.

[81] Additionally, the police are entrusted with great authority and must exercise their duties ethically and transparently and in accordance with the laws of the land to maintain public trust.

[82] It is claimed that Officer Patrick failed in this duty and in doing so breached his statutory duty under s. 81(2) by withholding services under the PSA.

[83] However, I note that paragraph 54 of the statement of claim refers to a breach of fiduciary duty which the plaintiff admits does not exist in this case.

[84] Further, the Chief of the OPS could be held vicariously liable under s. 41(1)(b) of the PSA for the conduct of OPS members.

[85] The court agrees that a finding that the plaintiff was not credible could be a ground not to lay a charge and certainly an assessment of whether a charge should be laid is a necessary process for the investigating officer. But to not lay a charge on the basis that the complainant consented to the sexual activity when she was a minor, in my view, is plainly a blatant disregard of the law of sexual assault and the Criminal Code, RSC 1985, c C-46.

[86] As well, the harm to the plaintiff in this case was foreseeable as it was in Rennalls. It is foreseeable that serious crimes, such as sexual assault, have a serious impact on the victims: see e.g., R. v. Friesen, 2020 SCC 9. In Friesen, the Court stated that protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Code: at para. 42.

[87] Moreover, in Rennalls, at para. 55, Devlin J. stated: “those affected will suffer psychological distress if the criminal justice system goes awry.” Justice Devlin further summarized: “Police officers ought to know that delays in the criminal justice process cause psychological and emotional harms to victims of crime.”

[88] In this case, the delay in charging Mr. Lance, the misrepresentation to the plaintiff that the video interview was gone and not advising her in 2008 that the file was still open could have caused harm to the plaintiff.

[89] The plaintiff also submits that there is sufficient proximity between the parties as the Supreme Court of Canada stated in Odhavji that the duty of police encompasses the “obligation to ensure that the members of the police force do not injure members of the public through misconduct in the exercise of police functions”: at para. 58.

[90] The plaintiff also argues that based on public policy, the cases have evolved and the Code has been amended to recognize the rights of sexual assault victims and that society must do better to be accountable to vulnerable victims of abuse, especially if they are minors.

Issue #2: Is there a reasonable cause of action?

[91] Rule 25 of the Rules sets out the requirements of pleadings.

[92] In Cerqueira v. Ontario, 2010 ONSC 3954, at para. 11, Strathy J. (as he then was) confirmed that the purpose of pleadings is to give notice of the case to be met and to identify the material facts that support the cause of action. A pleading may be struck with or without leave to amend in accordance with r. 25.11 of the Rules on the grounds that:

(a) it may prejudice or delay the trial of an action,
(b) it is scandalous, frivolous or vexatious, or
(c) it is an abuse of the process of the court.

[93] At para. 16 of Burns v. RBC Life Insurance Company, 2020 ONCA 347, 151 O.R. (3d) 209, the Court of Appeal for Ontario succinctly stated:

Each defendant named in a statement of claim should be able to look at the pleading and find an answer to a simple question: What do you say I did that has caused you, the plaintiff, harm, and when did I do it?

[94] In Cottage Advisors of Canada v. Prince Edward Vacant Land, 2020 ONSC 6445, at para. 16, the court confirmed that the defendant must show that it is plain and obvious and beyond doubt that the plaintiff could not succeed in the claim and that the claim must be read as generously as possible with a view to accommodating any inadequacies in the allegations due to drafting deficiencies. At para. 17, the court confirmed that leave to amend will only be denied in the clearest of cases when it is plain and obvious that no tenable cause of action is possible on the facts as alleged and there is no reason to suppose that the party could improve his or her case by any amendment. See also Mitchell v. Lewis, 2016 ONCA 903, at para. 21.

[95] In this case, the court finds that the tort has been properly pleaded. The court finds that there were statutory duties under the PSA and that if they are found to have been breached, part of the requirements of the tort will have been established.

[96] As stated, the plaintiff must show deliberate conduct on the part of the defendants, but it is not my task at this stage to determine if the evidence exists.

[97] On this record, the court finds that the plaintiff has a reasonable cause of action, and as discussed above, it is not statute-barred within s. 16 as there is a statutory duty on the defendants, there is a proximate cause alleged, and damages have been alleged.

Issue #3: Is there an abuse of process?

[98] The defendants move under r. 21.01 of the Rules which reads:

(1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

(2) No evidence is admissible on a motion,

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

(a) the court has no jurisdiction over the subject matter of the action;

(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,

and the judge may make an order or grant judgment accordingly.

[99] Since Hackland J.’s analysis was focused on a claim of negligent investigation, his decision is distinguishable. Hence, the court finds that this action is not an abuse of process.

Conclusion

[100] Accordingly, the defendants’ motion is dismissed.

[101] Given the early stages of this litigation, the court reserves the issue of costs of this motion to the trial judge.

Justice A. Doyle
Date: July 4, 2025