In the recent case Rivard v. Ontario, the Court of Appeal outlined what must be pled to advance a negligence action against a chief of police and a police services board.
Background
The Kingston Police arrested Donald Rivard and his girlfriend on charges of drug trafficking following a search of the vehicle they were driving. Rivard started his negligence claim following his arrest and alleged that he was a passenger in the vehicle, which was forced off the road by police. Despite offering no resistance, he was “forcibly dragged through the open passenger window,” thrown to the ground, and “brutally beaten by a swarm of uniformed officers,” which rendered him unconscious. He was unarmed, unable to defend himself, and despite that, there was no reasonable or probable grounds for his arrest. Rivard was hospitalized, underwent surgery for a shattered shoulder blade, had a seizure and bled from his ears the following day.
Rivard claimed against the individual police officers for assault and battery; alleged the chief was negligent in screening, training and oversight of the officers; and that the board was both directly and vicariously liable for his injuries. Rivard also brought an application, which was successful, to have the criminal charges against him stayed on the basis that his Charter rights had been violated.
The board and chief brought a motion under rr 21.01 and 25.11 of the Rules of Civil Procedure to dismiss the civil action against them, as it disclosed no reasonable cause of action and because the pleading was an abuse of the court’s process in that it did not comply with the rules of pleading and therefore should be struck out. The motion judge dismissed the motion to strike and allowed a cross-motion for leave to amend the claim.
The board and chief obtained leave to appeal to the Divisional Court, which reviewed the Fresh as Amended Statement of Claim and held that although some of the allegations should be struck, the actions against the board and chief could proceed. The board and chief then sought and obtained leave for appeal from the Divisional Court’s order.
Analysis
With respect to the claim in negligence against the chief, the Court of Appeal set out that there is no requirement that a chief be directly implicated in officer misconduct for a claim to be tenable, noting that was consistent with the reasoning of the Supreme Court Odhavji Estate v. Woodhouse, 2003 SCC 69 and the earlier Court of Appeal decisions in Miguna v. Ontario, 2005 262 DLR 4th 222 and Miguna v. Toronto Police Services Board, 2008 ONCA 799. As the Court found in Miguna v. Toronto Police Services Board, a police chief is not vicariously liable for the acts of their police officers in the course of their employment, “nor responsible for policy decisions under the sole purview of the police services board.” A police chief is responsible, however, for the day-to-day operation of the police force, due to the operation of the Police Services Act. A claim in negligence against a chief could therefore be viable if it was alleged that the chief knew or ought to have known about misconduct but failed to take steps to correct it, or if there were inadequate procedures in place to identify and report such misconduct.
Rivard’s claim particularized allegations that the chief’s failure to adequately assess, train, supervise and discipline the officers involved in his arrest was negligent, and that his damages were foreseeable, which rendered the cause of action in negligence against the chief tenable.
The court then turned to an analysis of the pleadings as to whether sufficient material facts were pled to ground the negligence claim against the chief, which was reviewable on a standard of palpable and overriding error. A Statement of Claim should make clear to each defendant the answer to a simple question: “what do you say I did that has caused you, the plaintiff, harm, and when did I do it?” The court agreed that some of Rivard’s allegations were unparticularized, however the court recognized that it would be unfair to require Rivard to provide details that were in the unique possession and control of the defendants. The court therefore did not grant that ground of appeal.
With respect to the claim in negligence against the board, the court noted that under the Police Services Act, a police services board is broadly responsible for the “provision of adequate and effective police services in the municipality,” and particularly responsible for determining the objectives and priorities with respect to the police service in consultation with the chief, establishing policies for the effective management of the police force, recruiting, appointing and directing the chief and monitoring his performance, establishing guidelines for complaints, and monitoring the chief’s administration of the complaints system. The board’s ability to oversee and direct specific police operations is “explicitly limited” under the Police Services Act. Notwithstanding that limitation, in addition to any direct liability a board may incur due to its own negligence, it remains liable “in respect of torts committed by members of the police force in the course of their employment” by virtue of section 50(1) of the Police Services Act.
The Supreme Court in Odhavji Estate v. Woodhouse recognized that a police services board’s lack of a direct supervisory relationship with members of the police force makes it more difficult to establish a close causal connection between alleged misconduct by police officers and the board’s actions or omissions, and that the “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.” A plaintiff would therefore have to allege and prove that there was a “particular problem such as 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.” The court found therefore that Rivard’s claim against the board failed to plead any material allegations of fact that could ground a claim in negligence directly, and struck the pleadings against the board in negligence. The only valid claim remaining against the board would be based on its vicarious liability for the torts alleged to have been committed by individual police officers.
Conclusion
The Court of Appeal struck out the allegations in Rivard’s claim which grounded the negligence claim against the board, however the board would remain a defendant to the claim given the operation of s 50(1) of the Police Services Act and its vicarious liability for officer conduct. The allegations against the chief were sufficient to stand.
This is an important case for guidance on what must be pled to advance a negligence claim against a police chief and a police services board involving allegations of police misconduct in Ontario.
