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Torts - Negligence - Police. Rivard v. Ontario [police board]
In Rivard v. Ontario (Ont CA, 2025) the Ontario Court of Appeal considered a police/police board appeal, this from a Divisional Court interlocutory appeal regarding R21 and R25.11 pleadings motions, this in a negligence lawsuit alleging serious assault during an arrest.
Here the court considers direct and vicarious liability against a police board:The allegations of fact pled do not support a direct claim in negligence against the Board
[55] Under s. 31(1) of the Police Services Act, a police services board is broadly responsible “for the provision of adequate and effective police services in the municipality”. In particular, a board is responsible for determining the objectives and priorities with respect to police services in the municipality, in consultation with the chief of police; establishing policies for the effective management of the police force; recruiting, appointing and directing the chief of police, and monitoring his or her performance; and establishing guidelines for dealing with complaints, and monitoring the chief of police’s administration of the complaints system. The board’s ability to oversee and direct specific police operations is explicitly limited, however. Under s. 31(3), a board “may give orders and directions to the chief of police, but not to other members of the police force”.
[56] Notwithstanding this limitation, in addition to any direct liability that a board may incur for its own negligence, a board is “liable in respect of torts committed by members of the police force in the course of their employment” by virtue of s. 50(1) of the Police Services Act.
[57] Although the Board concedes that it could be vicariously liable for torts committed by individual officers, it contends that Mr. Rivard’s allegation that it failed to discharge its statutory obligations to him is bald and conclusory, and that there are no material facts alleged that could give rise to a finding that it was directly negligent to him. I agree.
[58] At para. 64 of Odhavji, Justice Iacobucci noted that a police service board’s lack of a direct supervisory relationship with members of the force makes it more difficult to establish a close causal connection between alleged misconduct by officers and the board’s actions and omissions:The Board ... is much further in the background than the Chief. Unlike the Chief, the Board does not directly involve itself in the day‑to‑day conduct of police officers, but, rather, implements general policy and monitors the performance of the various chiefs of police. The Board does not supervise members of the force, but, rather, supervises the Chief (who, in turn, supervises members of the force). This lack of involvement in the day‑to‑day conduct of the police force weakens substantially the nexus between the Board and members of the public injured as a consequence of police misconduct. [59] The mandate of a police services board limits the circumstances in which it could be liable for officer misconduct. A plaintiff would have to allege (and prove) that there was a particular problem, for example an endemic excessive use of force against visible minorities, which it was required to address to discharge its statutory obligation to provide adequate and effective police services. As a general matter, however, “courts should be loath to interfere with the Board’s broad discretion to determine what objectives and priorities to pursue, or what policies to enact in pursuit of those objectives”: Odhavji, at para. 66.
[64] There are accordingly no material allegations of fact against the Board that could ground a claim that it might be directly, as opposed to vicariously, liable to Mr. Rivard for his damages. As a result, I am of the view that the Divisional Court erred in law in failing to strike subparas. 19(viii) and (xi). Assuming they are struck, there is no basis for Mr. Rivard’s negligence claim against the Board. The only valid claim against the Board is based on its vicarious liability for the torts allegedly committed by the individual police officers. . Rivard v. Ontario
In Rivard v. Ontario (Ont CA, 2025) the Ontario Court of Appeal considered a police/police board appeal, this from a Divisional Court interlocutory appeal regarding R21 and R25.11 pleadings motions, this in a negligence lawsuit alleging serious assault during an arrest.
Here the court considers negligence - and the adequacy of pleadings - in this police defendant context:[21] The appellants contend that Mr. Rivard has no tenable claim in negligence against the Chief on the facts alleged in his pleading, because “a claim against a police chief is adequately pleaded [only] where the chief is alleged to have been either directly implicated in the conduct complained of, or only “one step removed” because of an alleged failure that is factually interwoven with the alleged officer misconduct.”
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[24] I do not accept the appellants’ argument. The Divisional Court’s conclusion that Mr. Rivard has pleaded a tenable claim in negligence against the Chief is consistent with the principles applicable to actions against police officers, chiefs, and boards set out by the Supreme Court in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, and by this court in Miguna v. Ontario (Attorney General) (2005), 2005 CanLII 46385 (ON CA), 262 D.L.R. (4th) 222 (Ont. C.A.) (Miguna No. 1) and Miguna v. Toronto Police Services Board, 2008 ONCA 799, 301 D.L.R. (4th) 540 (Miguna No. 2).
[25] Contrary to the appellants’ submissions, neither Odhavji nor Miguna stand for the proposition that a claim in negligence against a police chief is untenable unless the plaintiff alleges that the chief was directly implicated in officer misconduct.
[26] In Odhavji, the estate and family members of a man shot dead by Toronto police officers sued the officers, their police chief, the Toronto Police Services Board, and the Attorney-General of Ontario. They alleged that the officers had breached their statutory duties under the Police Services Act by failing to co-operate in an SIU investigation into the shooting, thereby causing the family members mental distress, anxiety, and depression. The plaintiffs advanced claims against the police chief and the officers for negligence and for misfeasance in public office. They sued the board and the province for negligence. The defendants moved to strike the claims against them under r. 21.01(1)(b). The Supreme Court of Canada upheld this court’s decision allowing the claims against the police chief to proceed but striking the actions against the board and Ontario.
[27] The “one step removed” language quoted by the appellants appears in the discussion of the proximity required to establish that the defendant chief of police owed a duty of care to the plaintiffs in that case and does not support the appellants’ position. At para. 56, Iacobucci J. wrote:[T]he duties of a chief of police include ensuring that the members of the force carry out their duties in accordance with the provisions of the Police Services Act. In those instances in which a member of the public is injured as a consequence of police misconduct, there is an extremely close causal connection between the negligent supervision and the resultant injury: the failure of the chief of police to ensure that the members of the force carry out their duties in accordance with the provisions of the Police Services Act leads directly to the police misconduct, which, in turn, leads directly to the complained of harm. The failure of the Chief to ensure the defendant officers cooperated with the SIU is thus but one step removed from the complained of harm. Although a close causal connection is not a condition precedent of liability, it strengthens the nexus between the parties. [28] Justice Iacobucci concluded that “it would be inappropriate to strike the action for negligent supervision against [the defendant] Chief on the basis that he did not owe the plaintiffs a duty of care” because “[if] the plaintiffs can establish that the complained of harm is a reasonably foreseeable consequence of the Chief’s failure to ensure that the defendant officers cooperated with the SIU, the Chief was under a private law duty of care to take reasonable care to prevent such misconduct”: Odhavji, at para. 61.
[29] A police chief’s private law duty of care to a person alleging officer misconduct was considered again in Miguna No. 1 and Miguna No. 2.
[30] Mr. Miguna was an immigration lawyer publicly arrested and charged with sexually assaulting two clients. After he was tried and acquitted, Mr. Miguna sued the police, the Crown attorney, the province, and other parties, alleging various known and novel causes of action. His first statement of claim was struck by Paisley J., but that order was set aside by this Court, which granted Mr. Miguna leave to amend his pleading. Blair J.A. noted that “police may be liable for independent torts committed during the course of their duties, such as false arrest, false imprisonment, and assault and battery”: Miguna No. 1, at para. 12. Although Mr. Miguna’s allegations against the defendant officers were “bald and wanting in supporting material facts”, the motion judge erred by not granting him leave to amend his pleading to add material facts in support of his claim: Miguna No. 1, at paras. 21-22.
[31] Mr. Miguna then served a fresh amended statement of claim, which was again met with a motion to strike by the defendants, which by this time included not only police officers but their police chief Julian Fantino and the Toronto Police Services Board. The defendants again argued that Mr. Miguna had failed to plead a tenable cause of action or sufficient facts and particulars to support his allegations, such that his pleading ought to be struck out under r. 21.01 and r. 25.11. Spence J. granted the motion, but this court again granted Mr. Miguna’s appeal and allowed most of the claims in his action to proceed.
[32] In Miguna No. 2, Blair J.A. held that the motion judge erred by finding some causes of action untenable, despite the Court of Appeal’s decision to the contrary in Miguna No. 1; by assessing the likelihood that Mr. Miguna would be able to prove certain facts, instead of assuming the facts pleaded to be true; and by rejecting some claims because they were pleaded with excessive detail.
[33] The court also restored Mr. Miguna’s claim against the Chief Fantino. As Blair J.A. noted, a chief of police is not vicariously liable for the acts of his or her police officers in the course of their employment, nor responsible for policy decisions under the sole purview of the police services board: Miguna No. 2, at para. 83, citing Pringle v. London (City) Police Force, [1997] O.J. No. 1834 (C.A.), at para. 2. A police chief is, however, responsible for the day-to-day operation of the police force, by virtue of s. 41(1)(a) and (b) of the Police Services Act. As a result, “a claim could lie against Chief Fantino in negligence, if properly framed and pleaded”: Miguna No. 2, at para. 84 (emphasis in original).
[34] In striking the claim against Chief Fantino, the motion judge acknowledged that the negligence claim against the chief would be tenable if Mr. Miguna alleged that the chief knew or should have known about misconduct that was occurring but failed to take steps to correct it, or that there were inadequate procedures in place to identify and report such instances of misconduct. The problem was that, in the motion judge’s view, Mr. Miguna had not made these allegations. Blair J.A. disagreed. Emphasizing that pleadings must be read generously and that allegations of fact must be assumed to be true, he concluded that the material facts alleged by Mr. Miguna — that Chief Fantino was reckless or willfully blind in his approach and was motivated by extraneous considerations in not taking steps to intervene or to correct the alleged misconduct — would, if proved, establish Chief Fantino’s personal liability.
[35] The appellants claim that Miguna No. 2 stands only for the narrow proposition that a statement of claim against a chief of police is adequately pleaded “where the chief is alleged to have failed to take action in response to particularized police officer misconduct and in the context of personal animus against the individual plaintiff.” There is no basis for such a narrow reading, which contradicts the general approach to pleadings endorsed in Odjhavji and Miguna, and their specific direction about what allegations are necessary to ground a negligence claim against a police chief.
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[39] The appellants contend that, in the wake of Odhavji, Ontario courts have consistently held that s. 41(1) of the Police Services Act does not create a private law duty of care between a chief of police and individual members of the public, citing Haggerty v. Rogers, 2011 ONSC 5312, [2012] W.D.F.L. 756; Solak v. Brantford Police Services Board, 2022 ONSC 4025; and Rebello v. Ontario, 2023 ONSC 3574 in support. But the Divisional Court’s decision allowing Mr. Rivard’s claim against the Chief to proceed is not premised on the creation of a private law duty of care at large. It is based on Mr. Rivard’s particularized allegations that the Chief’s failure to adequately assess, train, supervise, and discipline the officers involved in his arrest was negligent and that these short fallings foreseeably caused his damages.
[40] The appellants argue that the Divisional Court erred in law by not adopting the analysis in Romagnuolo v. Hoskin, [2001] O.T.C. 673 (S.C.), and instead relying on the reasoning in Dawson v. Baker, 2017 ONSC 6477.
[41] I see no error in McCarthy J.’s analysis. As he found, Odhavji “support[s] the principle that a police commissioner or police chief’s duty of care for negligent supervision or training can be based on a pleading which alleges personal liability for a breach of his or her obligations of training or supervision” under the Police Services Act. In Romagnuolo, a motion judge struck a statement of claim against a police chief on the basis that it did not allege any direct involvement in officer misconduct. McCarthy J. found this decision inconsistent with the principles in Odhavji. He agreed with the motion judge in Dawson, who permitted an action in negligence against a police chief to proceed based on allegations similar to those in the Fresh as Amended Statement of Claim.
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