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Crown and Government Liability - Negligent Investigation
NOTE
'Negligent investigation' as a tort is a mix of conventional negligence - with it's focus on 'duty of care', 'standard of care' and such - and investigation, with it's unique features of police/Crown investigation as an activity.
MORE CASES
Part 2
. G.S. v. Toronto Police Services Board
In G.S. v. Toronto Police Services Board (Div Court, 2022) the Divisional Court set out the test for negligent investigation:[24] The motion judge recited the four-part test set out by this court on Romanic v. Michael Johnson, 2012 ONSC 3449, at para. 9 (aff’d 2013 ONCA 23), which requires the plaintiff to establish, in cases where an investigation has resulted in criminal charges, that:(1) the proceedings were initiated by the defendant;
(2) the proceedings were terminated in favour of the plaintiff;
(3) there was an absence of reasonable and probable grounds to commence the proceedings against the plaintiff; and
(4) in conducting the investigation the defendant owed a duty of care to the plaintiff, and did not meet the objective standard of a reasonable police officer in similar circumstances. ....
[32] In the present case, it is only necessary to address the third and fourth elements of the tort of negligent investigation, namely whether there was an absence of reasonable and probable grounds to commence the proceedings against the plaintiff, and whether, in conducting the investigation, the defendants owed the plaintiff a duty of care but failed to meet the objective standard of a reasonable police officer in similar circumstances.
[33] It is important to recognise that the four elements of the tort of negligent investigation must all be established. For the plaintiff to succeed, he must show not only the absence of reasonable and probable grounds to commence the proceedings against him but, also, that the actions of the defendants fall below the applicable standard of care.
[34] In Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129, at para. 55, the Supreme Court of Canada stated that the requirement of reasonable and probable grounds for arrest and prosecution informs the standard of care applicable to aspects of police work such as arrest and prosecution. More at paras 35-46.
. Lee v. Magna International Inc.
In Lee v. Magna International Inc. (Ont CA, 2021) the Court of Appeal cited a case that ruled out a tort of negligent investigation in an employment context:.... struck out the appellant’s claim in negligence as against the corporate defendants on the basis that, relying on this court’s decision in Correia v. Canac Kitchens, 2008 ONCA 506, 91 O.R. (3d) 353, there is no tort of negligent investigation by an employee against an employer in Ontario, and alternatively, after conducting an Anns/Cooper analysis, that no such tort should be recognized. . Flood v. Boutette
In Flood v. Boutette (Ont CA, 2021) the Court of Appeal canvassed law on the tort of negligent investigation:(a) The duty of care in laying charges
[68] Investigators such as Mr. Boutette owe a duty of care to those they investigate. In Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 73, the Supreme Court held that the standard of care “is the overarching standard of a reasonable police officer in similar circumstances,” or in this case, a reasonable fire safety inspector in similar circumstances: see Upchurch v. Oshawa (City), 2014 ONCA 425, 27 M.P.L.R. (5th) 179, at para. 21. Writing for the majority of the Court, at para. 73, McLachlin C.J. held that the duty is to exercise discretion in a manner that falls within the range of reasonable decisions available at the time the decision was made. She explained, further at para. 73, that in the analogous context of police investigations:The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results. Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and therefore, which do not breach the standard of care. [Internal citations omitted.] [69] In laying charges, “the standard [of care] is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty; since the law requires such grounds, a police officer acting reasonably in the circumstances would insist on them”: Hill, at para. 68.
[70] An investigator’s personal belief that there are reasonable and probable grounds is not sufficient: a reasonable person standing in the shoes of the investigator must believe there are reasonable and probable grounds to believe that the person charged committed the offence: see R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at p. 250; Payne (ONCA), at para. 31.
[71] In determining whether there are reasonable and probable grounds to lay charges, the investigator need not “evaluate evidence to a legal standard or make legal judgments” as “[t]hat is the task of prosecutors, defence lawyers and judges”: 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 51; see Hill, at para. 50.
[72] The standard of care to be applied by a professional generally requires expert evidence unless the standard is clear to an ordinary person or the conduct so outrageous that it is obvious the standard has not been met: 495793 Ontario Ltd. (Central Auto Parts), at paras. 53 and 57; Krawchuk v. Scherbak, 2011 ONCA 352, 106 O.R. (3d) 598, at paras. 130-131, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 319.
(b) The effect of a withdrawal of or an absence of conviction on the charges
[73] The withdrawal of charges or the absence of a conviction does not lead to the conclusion that reasonable and probable grounds did not exist to lay charges. Reasonable and probable grounds may still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to lay charges: Collis v. Toronto Police Services Board (2007), 2007 CanLII 36634 (ON SCDC), 228 O.A.C. 333 (Div. Ct.), at para. 66; see also Wong v. Toronto Police Services Board, 2009 CanLII 66385 (Ont. S.C), at paras. 59-68; Charlton v. St. Thomas Police Services Board, 2009 CanLII 25977 (ON SC), 190 C.R.R. (2d) 103, at para. 41 (Ont. S.C.); Lawrence v. Peel Regional Police Force, 2009 CanLII 19934 (Ont. S.C.), at para. 48.
[74] Payne (ONCA), released about a year and a half before the judgment under appeal, also concerned a fire at a rental property and the alleged violation of s. 9.3 of the Fire Code. Two owners of the home were charged with arson by negligence under s. 436 of the Criminal Code. The charges against one homeowner were dropped, while the second homeowner was discharged after the preliminary inquiry judge found an insufficiency of evidence. The homeowners then brought a claim for negligent investigation. The trial judge dismissed the claim, a result affirmed by this court. Strathy C.J.O. held, at para. 47, that the individual who charged the appellants:had no obligation to determine whether the charge would succeed at trial. He was not required to evaluate the evidence to a legal standard or to make legal judgments. Nor was he required to exhaust all possible investigations, to interview all potential witnesses prior to arrest, to obtain the accused’s version of events or determine that the accused had no valid defence to the charge, before being able to establish reasonable and probable grounds. [Citations omitted.] ....
[93] In my view, it is far from clear that Mr. Boutette’s conduct did not meet the standard of care. As noted above, the law distinguishes between unreasonable mistakes that breach the standard of care, and errors in judgment which a reasonable professional might make which do not breach the standard of care. The function of an investigator is to investigate incidents that might breach the Fire Code, make a conscientious and informed decision as to whether charges should be laid, and present the full facts to the prosecutor. Although investigators weigh evidence to some extent in the course of an investigation, they are not required to canvass all possible avenues of investigation, interview all potential witnesses, evaluate evidence according to legal standards, or draw correct legal conclusions: 495793 Ontario Ltd. (Central Auto Parts), at paras. 51-52; Wong, at paras. 56-59; Upchurch, at para. 28. . H.A. v. S.M.
In H.A. v. S.M. (Div Ct, 2021) the Divisional Court considered the tort of negligent investigation and it's defences:[15] As stated in Romanic v. Johnson, 2012 ONSC 3449, at para. 9, to succeed on a claim for negligent investigation, a plaintiff must establish the following:1. The proceeding was initiated by the defendant;
2. The proceeding was terminated in favour of the plaintiff;
3. The absence of reasonable and probable grounds to commence or continue the proceedings against the plaintiff; and
4. The defendant did not meet the objective standard of a reasonable police officer in similar circumstances. ....
[17] It is well-established that the existence, or continued existence, of reasonable and probable grounds is fatal to claims in negligent investigation and malicious prosecution. The onus is on the plaintiff to establish an absence of reasonable and probable grounds. Where the evidence of a particular witness is essential to the existence of reasonable and probable grounds, establishing a breach of the standard of care in a negligent investigation claim requires a plaintiff to demonstrate that the police defendants had “overwhelming” evidence discrediting that witness: see J.H. v. Windsor (City) Police Services Board et al., 2017 ONSC 6507, 44 C.C.L.T. (4th) 257.
[18] The Supreme Court of Canada in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51, defined the concept of reasonable and probable grounds in the context of an arrest as requiring an investigating officer to subjectively have reasonable and probable grounds on which to base the arrest. The arrest must also be justifiable from an objective point of view but need not demonstrate anything more. In other words, “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds” to make the arrest: see 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 49. Whether the evidence known to the police or a prosecutor amounts to reasonable and probable grounds is a question of law: see R. v. Sheppard, 2009 SCC 35 at paras. 42-3.
[19] The function of the police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor. Although this requires, to some extent, the weighing of evidence in the course of the investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Barclay, at para. 51.
[20] Regardless of possible frailties in credibility or reliability, the uncorroborated testimony of a single witness may be a sufficient basis upon which to convict, and therefore provides reasonable and probable grounds for an arrest and prosecution. In cases that turn on the credibility of an allegedly unbelievable complainant, where guilt may be proved depending on the trier of fact’s assessment of credibility, our courts have consistently held that the complainant’s credibility is best determined after the complainant has testified and, if he or she chooses, after an accused has also testified. It is up to the court trying the charges to evaluate witnesses, and police generally are not required to weigh and assess the evidence: J.H., at para. 6.
....
[27] The continued existence of reasonable and probable grounds is fatal to claims in negligent investigation and malicious prosecution. When the police have reasonable and probable grounds to arrest, the onus is on the plaintiffs to establish that reasonable and probable grounds have been vitiated. The plaintiffs have failed to discharge this onus. It is open to this court to grant summary judgment and dismiss the plaintiffs’ claims when the motions judge incorrectly failed to do so. . 495793 Ontario Ltd. (Central Auto Parts) v. Barclay
In the negligent investigation case of 495793 Ontario Ltd. (Central Auto Parts) v. Barclay (Ont CA, 2016) the Court of Appeal discusses the standard of care applicable to professional negligence, and in particular the need for expert evidence on the content of the standard of care:E. ANALYSIS
[45] For the reasons that follow, I conclude that the trial judge erred by deciding the content of the standard of care without expert evidence. There are two exceptions to the general rule that expert evidence is required. Neither exception applies here. Without such evidence, there was no basis for determining the appropriate content of the standard of care of a reasonable Thunder Bay police officer conducting a specialized investigation into stolen auto parts, and consequently no basis upon which the trial judge could find that the standard had been breached.
[46] Moreover, as she proceeded, the trial judge committed the additional errors discussed below. With the exception of the parties’ agreement as to damages for loss of and damage to seized property, the trial judge should have dismissed the respondents’ action.
(1) The Lack of Expert Evidence on Standard of Care
(a) The Standard of Care
[47] The appropriate standard of care for the tort of negligent investigation was established by the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129. The “flexible overarching standard” is that of “a reasonable police officer in similar circumstances”: Hill, at para. 68. As explained by the Chief Justice, at para. 73:The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. [48] The conduct of a reasonable police officer may vary depending on the stage of the investigation and the legal considerations. In laying charges, the standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty: Hill, at para. 55.
[49] The Supreme Court of Canada in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-251, defined the concept of reasonable and probable grounds as requiring an arresting officer to subjectively have reasonable and probable grounds on which to base the arrest. It must also be justifiable from an objective point of view but need not demonstrate anything more. See also: R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 24. In other words, “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds” to make an arrest: R. v. Storrey, at p. 251.
[50] The police are not required to establish a prima facie case for conviction before making an arrest: R. v. Storrey, at p. 251; Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), 2009 CanLII 66385, 2009 CarswellOnt 7412 (S.C.), at para. 54; Gioris v. Toronto Police Services Board, 2012 ONSC 6396 (CanLII), 2012 CarswellOnt 15071, at paras. 68-70. As explained by Thorburn J. in Wong, at para. 61:The determination as to whether reasonable grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later. Reasonable grounds still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to arrest the accused. [51] The function of police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor: Wong, at para. 56. Although this requires, to some extent, the weighing of evidence in the course of investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Hill, at para. 50.
[52] Nor is a police officer required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds: Kellman v. Iverson, 2012 ONSC 3244 (CanLII), [2012] O.J. No. 2529, at para. 16; Wong, at para. 59.
(b) The General Rule is that Expert Evidence is required
[53] The general rule is that the content of the standard of care of a professional, such as a police officer, will require expert evidence: Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6 (CanLII), 329 O.A.C. 173, at paras. 34-35; Krawchuk v. Scherbak, 2011 ONCA 352 (CanLII), 106 O.R. (3d) 598, at para. 130, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 319; Bergen v. Guliker, 2015 BCCA 283 (CanLII), 75 B.C.L.R. (5th) 351, at paras. 114-131; Camaso Estate v. Saanich (District), 2013 BCCA 6 (CanLII), at paras. 71-72, leave to appeal to S.C.C. refused, [2013] S.C.C.A. No. 92.
[54] As Smith J.A. explained on behalf of the Court of Appeal for British Colombia in Bergen v. Guliker, at para. 131:While there are cases in which the breach of the standard of care will be apparent without expert evidence, typically when a suit is brought for professional negligence it is customary (and generally necessary), for there to be expert evidence on the standard of care. As the analysis in Hill makes clear, police officers are professionals and their conduct should be assessed in the same way that other professional negligence claims are evaluated. [Citations omitted.] [55] Strathy C.J.O. in Meady explained that that general rule is subject to the exception for “nontechnical matters or those of which an ordinary person may be expected to have knowledge”. See also Krawchuk, at para. 133.
[56] Whether expert evidence as to the standard of care of a police officer is required turns on the nature of the issues and the facts of each case, with particular regard to the specialized or technical nature of the circumstances, and whether a trier of fact can rely on its own knowledge and experience to determine the appropriate standard of care and whether it is met.
[57] Epstein J.A., on behalf of this court in Krawchuk, identified two exceptions to the general rule that it is not possible to determine professional negligence without the benefit of expert evidence. The first, as mentioned above, is in nontechnical matters within the knowledge and experience of the ordinary person. The second is where the impugned actions are so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care. Epstein J.A. explained, at para. 135, that “this second exception involves circumstances where negligence can be determined without first identifying the parameters of the standard of care rather than identifying a standard of care without the assistance of expert evidence.”
[58] Several appellate cases have considered the application of the general rule and its exceptions.
[59] In Meady, this court deferred to the trial judge’s decision that he did not require expert evidence to determine the professional standard of care and dismissed the appeal. Meady was an action in negligence against two OPP officers and their employer by a number of passengers and the driver of a Greyhound bus. The bus crashed after a man, with whom the police had contact before boarding, grabbed the steering wheel. The trial judge held that the proposed police expert was not properly qualified and that, in any event, expert police evidence was unnecessary. The issue of appropriate police training, policies, investigation techniques and interaction with the public fell within the understanding of the trier of fact. The only live issue was whether crisis management should have been employed, and the training document to which the proposed expert referred was before the trial judge. The Chief Justice observed, at para. 47, that “[t]he exercise of police powers of investigation, arrest and detention and police interactions with the public falling short of coercion, are part of the daily diet of judges of the Superior Court.” Expert evidence was not required to understand or apply the standards set out in those materials or to assess whether the officers had properly applied their training.
[60] The Court of Appeal for British Columbia in Bergen allowed an appeal by the province from a judgment finding it 20% liable for a collision following a police pursuit. The court found that the determination of whether the standard of care was breached, following commencement of the police pursuit in question, required expert evidence on how a reasonable police officer would have gone about apprehending a mentally unstable and suicidal individual in the circumstances without causing harm to others. The court held that the proffered expert evidence was properly ruled inadmissible by the trial judge, but as a result, there was no basis for determining the appropriate standard of care and no basis upon which the judge could make key findings of fact related to whether a breach of the standard of care occurred. The court concluded that the trial judge had erred. In the absence of expert evidence, the judge could not have determined the content of the standard of care and could not adjudicate the claim.
[61] In Camaso Estate, the trial judge had found that expert evidence was required in a police negligence case in which the officer fatally shot the respondent’s husband. The Court of Appeal for British Columbia allowed the appeal because the trial judge did not refer to the expert evidence but rather imposed his own standard of care without any evidentiary basis.
[62] In Roy v. British Columbia (Attorney General), 2005 BCCA 88 (CanLII), 251 D.L.R. (4th) 233, leave to appeal to S.C.C. refused, [2005] S.C.C.A. 188, the death of an individual from extreme intoxication while in custody was at issue. On appeal, the majority of the court concluded that the trial judge erred by finding that the officers did not perform any adequate assessment or investigation into Mr. Roy’s state of consciousness or consider whether his significantly reduced level of awareness might require medical examination, in the absence of evidence of what a competent police officer would do in the circumstances. The issue related to matters beyond common experience and it was not a matter of a “non-technical nature or of which an ordinary person may be expected to have knowledge” and as such, expert evidence on the standard of care was necessary.
[63] In those police negligence cases in which the judge has proceeded without expert evidence, the case has been straight forward in nature: see Russell v. York Police Services Board, 2011 ONSC 4619 (CanLII); Lawrence v. Peel Regional Police Force, 2009 CanLII 19934 (ON SC); Wong. . Correia v. Canac Kitchens
In Correia v. Canac Kitchens (Ont CA, 2008) the Court of Appeal canvassed the tort of negligent investigation: A. Negligent investigation
....
(b) Analysis of the negligent investigation claims
[18] In Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, the Supreme Court of Canada recognized the tort of negligent investigation as applied to police officers. Speaking for the majority, McLachlin C.J.C. held that the police owe a duty of care in negligence to suspects being investigated. The question posed by this case is whether the reasoning in Hill can be extended to recognize a duty of care on private actors.
[19] The test for determining whether a person owes a duty of care to another as laid down in Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.) has been [page364] accepted by the Supreme Court of Canada in a number of decisions including Kamloops (City) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2, [1984] S.C.J. No. 29. The test involves two questions:
(1) Does the relationship between the plaintiff and the defendant disclose sufficient foreseeability and proximity to establish a prima facie duty of care?
(2) Are there any policy considerations that should nevertheless negate or limit that duty of care? . Collis v. Toronto Police Services Board
In Collis v. Toronto Police Services Board (Div Ct, 2007) the Divisional Court stated:Issue No. 4: Did the trial judge err in finding liability for negligent investigation?
[69] The elements of the tort of negligent investigation were set out by the Court of Appeal in Hill v. Hamilton-Wentworth Regional Police Services Board, 2005 CanLII 34230 (ON CA), [2005] O.J. No. 4045 at para. 83:The standard of care, at a general level, is the same as the standard respecting other professionals: what would a reasonable police officer in the same circumstances as the defendant do? In an arrest and prosecution context, the standard becomes more specific and is directly linked to statutory and common law duties, namely did the police have reasonable and probable grounds to believe that the plaintiff had committed a crime? [70] In this case, the trial judge concluded that Detective Irwin should have taken further steps before making the decision to arrest – reading the recognizance, discussing it with Detective Price, and perhaps obtaining legal advice from a Crown Attorney. There was no evidence before him that a reasonably prudent police officer would have taken such steps as obtaining legal advice before proceeding to an arrest. Indeed, counsel for the respondent conceded that the failure to consult the Crown was not reasonably required.
[71] In any event, as I have found that there were reasonable grounds for the arrest, the standard of care has been met, and there can be no liability for negligent investigation.
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