Ontario Court Of Appeal Summaries (May 28 – June 1)

Good evening,

Following are the summaries of this week's civil decisions of the Court of Appeal for Ontario.

In a lengthy decision in Tremblay v Ottawa (Police Services Board), the Court set aside an award of damages against the Ottawa police for false arrest, unlawful detention and imprisonment, Charter violations, and negligent investigation. What is noteworthy is that this is a rare example of an appeal being granted mostly as a result of errors of fact rather than errors of law.

Other topics covered this week included whether the deliberations of certain municipal committees were required to be open to the public, municipal liability, spousal support, setting aside default judgments and dismissals for delay, and the age-old problem of determining whether an order is final or interlocutory.

Until next week,

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

https://www.blaney.com/lawyers/john-polyzogopoulos

Civil Decisions

Tremblay v Ottawa (Police Services Board), 2018 ONCA 497

[Strathy CJO, Juriansz and Huscroft JJ A]

Counsel:

JJ Wright, for the appellants

L Greenspon, for the respondents

Keywords: Torts, Negligent Investigation, False Arrest, False Imprisonment, Breach of Charter Rights, Probable Cause, Intimidation, Meady v Greyhound Canada Transportation Corp., 2015 ONCA 6, 329 OAC 173, [2007] 3 SCR 129, 495793 Ontario Ltd. v Barclay, (2016) 132 OR (3d) 241 (CA), R v Golub, (1997) 34 OR (3d) 743 (CA), Criminal Code, RSC, 1985, C-46, section 495, Canadian Charter of Rights and Freedoms, Sections 7, 8, 9

Facts:

This appeal arises from an action commenced by the respondents, RT and his spouse JM, against the Ottawa Police Services Board ("OPS"), Sergeant JA and other named police officers, for damages for the arrest of RT and the execution of a public safety firearms warrant at the respondents' home on October 17, 2006. The action alleged negligent investigation, false arrest and false imprisonment, and breach of their rights under ss. 7, 8 and 9 of the Canadian Charter of Rights and Freedoms.

RT and JM were involved in a dispute with their neighbours, who alleged a drainage pipe RT and JM had installed was causing flooding in their homes. Six neighbours brought a civil suit against RT and JM. Some of the neighbours claimed that Tremblay subsequently engaged in intimidating behaviour toward them and their families.

The OPS arrested RT for intimidation and mischief. Having confirmed that RT had a licence and registration to possess three firearms, the OPS also obtained a public safety firearms warrant. Police entered and searched the respondents' home, seizing the firearms and ammunition.

At his criminal trial, RT was acquitted of intimidation and of criminal harassment. He was found guilty of mischief.

The trial judge found Sgt. JA, who was the investigating officer, and the OPS, as Sgt. JA's employer, liable to JT for negligent investigation, false arrest, unlawful detention and unlawful imprisonment and breaches of RT's rights under ss. 7, 8, and 9 of the Charter. She found Sgt. JA and the OPS liable for breach of JM's rights under s. 8 of the Charter, relating to the search of the home. She awarded RT and JM over $50,000 in damages. The police appealed.

Issues:

(1) Did the trial judge err by defining the standard of care for negligent investigation in the absence of any evidence?

(2) Did the trial judge impose a standard of care inconsistent with the established jurisprudence?

(3) Did the trial judge err by finding that there were not reasonable and probably grounds to arrest for intimidation under s. 495(1) of the Criminal Code?

(4) Did the trial judge err in finding that the public interest limitation in s. 495(2) applies?

(5) Did the trial judge err in failing to apply s. 495(3)?

Held: Appeal allowed.

Reasons:

(1) Yes. The trial judge erred by defining the standard of care for negligent investigation in the absence of any evidence.

Neither side called expert evidence at trial. After the close of evidence, the respondents brought a motion to reopen their case, so they could tender expert evidence to support their claim against the OPS based on inadequate training and supervision. In refusing the motion, the trial judge observed that without expert evidence as to the standard of care applicable to police services in Ontario in 2006 their "claim in negligence against the OPS Board was doomed to fail".

The trial judge took a different view with regard to the claim in negligence against Sgt. JA. While recognizing the general rule that expert evidence is required to establish the standard of care in a negligent investigation claim, she concluded this case fell within the exception for actions involving non-technical matters within the knowledge and experience of the trier of fact.

In doing so, she relied on the decision of this court in Meady v Greyhound Canada Transportation Corp., 2015 ONCA 6, 329 OAC 173. However, Meady can be distinguished because the trial judge in that case had a wealth of other evidence available to him with respect to the police policies, procedures and standards that applied at the time; evidence not available in the case at bar. To fill that vacuum, the trial judge drew on two sources to guide her determination of the standard of care, both problematic.

First, the trial judge referred to the "Declaration of Principles" set out in s. 1 of the Police Services Act, RSO 1990, c. P.15 which she described, at para. 65, as "somewhat instructive of the standard for care owed by a police officer to members of the community". The principle set out in this statutory provision is far too general to serve as the basis for defining the standard of care in a particular investigation. The general principle does not displace a police officer's authority to make an arrest when grounds to do so exist under s. 495 of the Criminal Code.

Second, the trial judge drew on the actions taken by other officers who had investigated earlier complaints that arose out of the dispute as instructive to how Sgt. JA should have proceeded, including personal interviews with the actors and discussing ways to de-escalate the tension.

Ultimately, the trial judge erred by proceeding to define a standard of care that was without any evidentiary basis, and contrary to the only pertinent evidence before her.

(2) Yes. The trial judge imposed a standard of care inconsistent with the established jurisprudence.

The trial judge held that Sgt. JA had a duty to further investigate the red flags that undermined the reliability of the information he had. The trial judge found that in assessing Sgt. JA's conduct, she was entitled to consider not only the information that Sgt. JA had, but also "the information that he did not have but which he could have had upon simple inquiry." To support this proposition, she cited the decision of Doherty J.A. in R v Golub, (1997) 34 OR (3d) 743 (CA), at para. 21:

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.

This passage does not support the proposition for which it was cited. The words "all information available" refers to the information the officer had in his possession - not additional information the officer "could have had upon simple inquiry".

In 495793 Ontario Ltd. v Barclay, (2016) 132 OR (3d) 241 (CA) the Court of Appeal reversed a decision that followed an approach similar to that adopted by the trial judge in this case. Notwithstanding the absence of any urgent circumstances, the court pointed out in that case that "the trial judge's criticism of the police for failing to follow-up on, or take steps to become aware of, possible innocent explanations ignores the established jurisprudence that police are not required to exhaust all avenues of investigation, establish that an accused has no defence, or even obtain an accused's version of events."

By proceeding contrary to this well-established principle, the trial judge erred in finding that Sgt. JA was required to take additional investigative steps in light of the red flags she identified.

(3) Yes. The trial judge erred by finding that there were not reasonable and probable grounds to arrest for intimidation under s. 495(1) of the Criminal Code. Had the trial judge focused on the elements of the offence of intimidation, and on the information that was available, she would have concluded that there were reasonable grounds to arrest RT for intimidation. The statements and timeline from P and H provided Sgt. JA with enough information to meet the reasonable and probable grounds standard with respect to these two elements. The trial judge erred in finding there were no reasonable and probable grounds to arrest for intimidation.

(4) Yes. The trial judge erred in finding that the public interest limitation in s. 495(2) of the Criminal Code applied. Section 495(2) places a duty on a police officer who has grounds for arrest under s. 495(1) to not arrest where he or she believes on reasonable grounds that the public interest may be satisfied without arresting the person. The phrase "believes on reasonable grounds" is both a subjective and objective test and both components must be satisfied. The trial judge set out the correct test for s. 495(2), citing Collins. However, it is not clear from the record that Sgt. JA believed on reasonable grounds that the public interest could be satisfied without arresting RT. The subjective component of the test was not satisfied and therefore the trial judge erred in finding s. 495(2) was violated.

(5) Yes. The trial judge erred in failing to apply s. 495(3) of the Criminal Code. Section 495(3)(b) deems an arrest to be lawful notwithstanding s. 495(2) unless the person asserting its application "alleges and...