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Torts - Breach of Confidence

Damages - Aggravated Damages - Post-Incident Events

Nissen v. Durham Regional Police Services Board (Ont CA, 2017)

In this case the Court of Appeal upheld a trial judgment that a confidential informant was entitled to damages for breach of that confidence by police. In doing so the court considered, but dismissed, the need to consider the case under any notional breach of confidential informant privilege, and relied on the more conventional tort doctrine of breach of confidence:
[1] The central issue on this appeal is: what are the required elements for a claim for damages against the police for breach of a promise of confidentiality made to a citizen reporting criminal wrongdoing?

.....

[32] In my view, this case can and should be decided as a civil claim for damages for breach of confidence. The fundamental point is that, on the findings of the trial judge, Officer Liepsig made a promise of confidentiality and anonymity to Ms. Stack in exchange for the information she provided. The trial judge found that the promise was breached and Ms. Stack suffered damages as a result. Those findings bring this case squarely within the long-recognized cause of action for breach of confidence, and Ms. Stack is accordingly entitled to recover on that basis.

[33] While other considerations may come into play in a criminal case where the prosecution is resisting disclosure of the identity of a confidential informer to an accused, this is a civil case between the police and an individual who was promised confidentiality. That promise gave rise to a common law and equitable right entitling Ms. Stack to have her identity kept confidential. Her right was not contingent upon other ways the Police may have had to get the information she provided, or on what the Police thought about the danger she faced.

[34] Difficulty in obtaining the information and fear of harm to the witness may well be the rationales underlying the doctrine of informer privilege in criminal law, but I am not persuaded that they are necessary elements to sustain the privilege, even in a criminal case. There is no suggestion to that effect in the lengthy discussion of the doctrine in Hubbard, Magotiaux and Duncan, The Law of Privilege in Canada, loose-leaf (Aurora: Canada Law Book, 2006, looseleaf). For the purposes of this appeal, I need go no further than saying that there is no reason to qualify the right to sue for breach of confidence by adding additional elements necessary to establish a civil claim for damages. To do so would put the citizen interacting with the police in an impossible situation. Ms. Stack had no way of determining whether the Police could obtain from another source the information she was offering. Nor did she have any way of gauging what the Police considered to be the risk of harm she faced should her identity be disclosed. She explained her fear of harm to Officer Liepsig, and that fear ultimately proved to be well-founded. She was entitled to rely on Officer Liepsig’s promise of confidentiality in exchange for her cooperation in giving him the information she had.

[35] It is, of course, for the police to decide whether or not to make a promise of confidentiality. In making that decision, they will no doubt make an assessment of the value of the information the witness may have to offer, whether they can get the information through other means, and the danger the witness may face if his or her identity is revealed. If the police tell the witness that they will not reveal his or her identity or involvement in order to get information, they should keep their promise, or face the ordinary consequences of violating the assurance they have given. If the police decide that the witness does not deserve or warrant the requested assurance of confidentiality and anonymity, they should clearly say so and refuse to give the witness the requested assurance. That would allow the witness to decide whether to nonetheless give the information and accept the risk of disclosure. Simply put, a citizen in Ms. Stack’s situation should be able to rely upon what the police tell her.

[36] Nor do I accept the submission that because the Police did not follow their own Directive for confidential informers, Ms. Stack’s civil claim for damages is defeated. While I accept that Officer Liepsig may have thought that Ms. Stack was not a confidential informer within the meaning of the Directive, I fail to see how that can affect her right to claim for breach of confidence. Her claim rests upon the promise of confidentiality that Officer Liepsig made, and the exchange of information that followed as a result. She had no way of determining whether she fit within the terms of the Directive, and it would be obviously unfair to deny her claim on the basis of a Directive that had never been explained or brought to her attention.
The court also commented as follows on the awarding of aggravated damages with respect to incidents subsequent to the main tortious act:
[52] The Police submit that the trial judge erred in awarding aggravated damages without making a finding of “reprehensible or outrageous conduct”.

[53] The trial judge rejected the claim for punitive damages. He found, at para. 374:
[T]his is not one of those exceptional cases that requires an award of punitive damages for malicious, oppressive and high-handed misconduct that offends the court’s sense of decency… The conduct of the defendants does not remotely approach that standard. [citation omitted]
[54] He did, however, note that a damages award must take into account aggravating features, which he described, at para. 367:
First, as noted, the police did nothing whatsoever to preserve Ms. Stack’s anonymity. Second, once they became aware of the harassing behaviour by [Mr. E] they did almost nothing about it. Apart from one brief conversation with [Mr. E.], in which it is doubtful that the importance of the problem was impressed on [Mr. E.], the police did nothing. There was no evidence of any follow-up with [Mr. E.]. Indeed, somewhat inexplicably, no one even followed up with Mr. Nissen or Ms. Stack to advise them that [Mr. E.] had been spoken to.
[55] I am not persuaded by the Police argument that this passage reveals an error of law. Aggravated damages aim not at punishing wrongful behaviour, but at compensating the injured plaintiff for the full extent of the plaintiff’s loss. Very often, aggravation of the plaintiff’s loss will be caused by outrageous or reprehensible conduct, as it is that quality of the defendant’s conduct that causes additional distress or humiliation that calls for compensation not captured by a purely conventional award. I am not persuaded, however, that a trial judge can only take aggravating features into account where there has been outrageous or reprehensible conduct. I agree with the observation made by this court in Weingerl v. Seo (2005), 2005 CanLII 21356 (ON CA), 256 D.L.R. (4th) 1, at para. 70 that “post-incident conduct which aggravates the harm to the victim” may also be taken into account.


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