Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., (2005) 202 O.A.C. 310 (CA)

• Judge: Goudge, Feldman, MacPherson, MacFarland and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 05, 2005
• Jurisdiction: Ontario
• Citations: (2005), 202 O.A.C. 310 (CA)

Hill v. Police Services Bd. (2005), 202 O.A.C. 310 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. SE.094

Jason George Hill, Gaye Margaret Hill, Ronald James Hill, Sheila Gauthier, Michael Edward Hill, Jennifer Gauthier, Bradley Gauthier and George T. Hill (plaintiffs/appellants) v. Hamilton-Wentworth Regional Police Services Board, Jack Loft, Andrea McLaughlin, Joseph Stewart, Sid Millin, Domenic Delibato, Ian Matthews, Terry Hill, Laverne Urban, and Joseph Nadel (respondents)

(C40652)

Indexed As: Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al.

Ontario Court of Appeal

Goudge, Feldman, MacPherson, MacFarland and LaForme, JJ.A.

September 26, 2005.

Summary:

Hill was originally charged with 10 counts of robbery. All charges were withdrawn except for one count of robbery of a credit union. Hill was acquitted of that charge at a second trial. Hill and members of his family brought an action against the Hamilton-Wentworth Regional Police Services Board and several police officers involved in the robbery investigation, claiming malicious prosecution, negligent investigation and breach of Charter rights.

The Ontario Superior Court, in a decision reported at [2003] O.T.C. 807, dismissed the action. Hill and his family members appealed. At issue on the appeal were: (1) whether the decision in Beckstead v. Ottawa Police (Ont. C.A.), holding that there was a tort of negligent investigation relating to police officers, should remain the law of Ontario; and (2) whether the trial judge erred by concluding that the conduct of the police officers did not constitute either malicious prosecution or negligent investigation.

The Ontario Court of Appeal, Feldman and LaForme, JJ.A., dissenting in part, dismissed the appeal. The court affirmed that the decision in Beckstead remained the law in Ontario. The court held that the trial judge did not err in dismissing the claims of malicious prosecution and negligent investigation.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The plaintiff sued a police services board and several police officers, claiming malicious prosecution, negligent investigation and breach of Charter rights - The action was dismissed - The plaintiff appealed from the dismissal of his claims for negligent investigation and malicious prosecution - He argued that the trial judge's reasons were not sufficient to allow for meaningful appellate review and did not comply with the standard for reasons for judgment in R. v. Sheppard (S.C.C.) - The Ontario Court of Appeal rejected the argument - The trial judge's 20 page decision was responsive to the issues, both in law and on the evidence - A trial judge did not have to deal with all of the evidence - It was clear from the reasons for judgment why the trial judge reached the decision he did - His reasons posed no barrier to the exercise of appellate review - See paragraphs 122 to 125.

Police - Topic 3290

Powers - Identification of criminals - Line-up - [See third and fourth Police - Topic 5031 ].

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - Hill sued a police services board and several police officers for negligent investigation - The tort of negligent investigation by the police had existed in Ontario since the 1997 decision in Beckstead v. Ottawa Police (Ont. C.A.) - The defendants argued that Beckstead should be overruled - They submitted that: (1) the imposition of a duty of care on the police with respect to criminal investigations would have an undesirable chilling effect on the police in the performance of their duties; and (2) the tort of malicious prosecution struck a more appropriate balance between the need to safeguard the interests of persons wrongly accused of crime and the societal need for the police to be able to carry out their duties without fear - The Ontario Court of Appeal rejected the arguments and affirmed that Beckstead remained the law in Ontario - Harm to a suspect was a foreseeable consequence of negligent investigation by a police officer, there was sufficient proximity between the parties and there were no policy reasons to deny the existence of a duty of care on the police - See paragraphs 39 to 82.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The tort of negligent investigation by the police had existed in Ontario since the 1997 decision in Beckstead v. Ottawa Police (Ont. C.A.) - The Ontario Court of Appeal affirmed that the decision in Beckstead remained the law in Ontario - The court stated that "I have determined that there is a tort of negligent investigation by the police. 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" - See paragraph 83.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - Hill was originally charged with 10 counts of robbery - All charges were withdrawn except for one - Hill was acquitted of the remaining robbery charge at a second trial - Hill sued the Hamilton-Wentworth Regional Police Services Board and several police officers for negligent investigation - The action was dismissed - Hill appealed - He submitted, inter alia, that the police failed to follow their own internal guidelines with respect to the presentation of photo line-ups - The submission was based on the fact that Hill's photo had been published in the media and that at one robbery site, the police had interviewed two tellers/witnesses together - The Ontario Court of Appeal dismissed the appeal - The police released Hill's photo to the media because a large number of robberies had been committed in rapid succession and they had reasonable and probable grounds to believe that Hill was the robber - While it would have been preferable for the police to have separated the two tellers, both tellers had remained firm in their identification of Hill - The internal guidelines relied on by Hill were not mandatory at the time and Hill did not demonstrate that they constituted the standard required of a reasonable police officer - See paragraphs 83 to 95.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - Hill was originally charged with 10 counts of robbery - All charges were withdrawn except for one - Hill was acquitted of the remaining robbery charge at a second trial - Hill sued the Hamilton-Wentworth Regional Police Services Board and several police officers for negligent investigation - The action was dismissed - Hill appealed - He submitted, inter alia, that a photo lineup of 11 caucasians and one aboriginal person (Hill) was structurally biased against him - The Ontario Court of Appeal dismissed the appeal - The photo lineup was not part of the evidence on the robbery charge which Hill faced at trial and there was no causal link between the photo lineup and Hill's arrest, detention and trial on that charge - Further, the trial judge concluded that Hill being an aboriginal person did not make him stand out in the lineup and did not affect his selection - That finding was open to him on the evidence - The trial judge's conclusion that the photo lineup was fair was not a palpable and overriding error - See paragraphs 96 to 109.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - Hill was originally charged with 10 counts of robbery - All charges were withdrawn except for one - Hill was acquitted of the remaining robbery charge at a second trial - Hill sued the Hamilton-Wentworth Regional Police Services Board and several police officers for negligent investigation - The action was dismissed - Hill appealed - He argued, inter alia, that the police conducted an inadequate reinvestigation of the charges against him after another person was arrested for three bank robberies, including one for which Hill was originally charged - The Ontario Court of Appeal dismissed the appeal - The trial judge did not commit a palpable and overriding error by determining that the police conformed to the appropriate standard during their investigation of Hill - See paragraphs 110 to 121.

Police - Topic 5222

Actions against police - For malicious prosecution - What constitutes - Hill was originally charged with 10 counts of robbery - All counts were withdrawn except for one - Hill was acquitted of the remaining robbery charge at a second trial - Hill sued the Hamilton-Wentworth Regional Police Services Board and several police officers for malicious prosecution - The action was dismissed - Hill appealed, arguing that the trial judge erred in his conclusions on both the reasonable and probable grounds and malice elements of the tort of malicious prosecution - The Ontario Court of Appeal rejected the argument - There were reasonable and probable grounds to institute criminal proceedings against Hill and nothing in the police officers' testimony suggested that they were motivated by an improper purpose - The trial judge's finding of no malice required an assessment of the evidence against the legal standard of malice and was therefore a finding on a question of mixed fact and law - It involved the trial judge's interpretation of the evidence as a whole and should not be overturned absent palpable and overriding error or unless clearly wrong, unreasonable or unsupported by the evidence - See paragraphs 29 to 37.

Police - Topic 5224

Actions against police - For malicious prosecution - Requirement of malice - [See Police - Topic 5222 ].

Torts - Topic 48

Negligence - Standard of care - Particular persons and relationships - Police officers - [See second Police - Topic 5031 ].

Torts - Topic 6156

Abuse of legal procedure - Malicious prosecution - Malice - What constitutes - [See Police - Topic 5222 ].

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - [See Police - Topic 5222 ].

Torts - Topic 9154

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Police officers and authorities - [See first Police - Topic 5031 ].

Cases Noticed:

Beckstead v. Ottawa Police, [1997] O.A.C. Uned. 568; 37 O.R.(3d) 62 (C.A.), folld. [paras. 2, 129].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, appld. [paras. 26, 137].

Proulx v. Québec (Procureur général), [2001] 3 S.C.R. 9; 276 N.R. 201, appld. [paras. 29, 138].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [paras. 35, 138].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 37].

H.L. v. Canada (Attorney General) et al. (2005), 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 37].

Jane Doe v. Board of Police Commissioners of Metropolitan Toronto et al. (1998), 60 O.T.C. 321; 39 O.R.(3d) 487 (Gen. Div.), consd. [para. 46].

Anns v. Merton London Borough Council, [1977] 2 All E.R. 492 (H.L.), appld. [para. 47].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268, appld. [para. 47].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201, appld. [para. 47].

Calveley et al. v. Chief Constable of the Merseyside Police, [1989] 1 All E.R. 1025; 103 N.R. 125 (H.L.), refd to. [para. 48].

Elguzouli-Daf v. Commissioner of Police of the Metropolis, [1995] 1 All E.R. 833 (C.A.), refd to. [para. 48].

Kumar v. Commissioner of Police for the Metropolis, [1995] E.W.J. No. 632 (C.A.), refd to. [para. 48].

Hill Estate v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238; 102 N.R. 241 (H.L.), consd. [para. 54].

Brooks v. Commissioner of Police for the Metropolis et al. (2005), 338 N.R. 1; [2005] UKHL 24, consd. [para. 54].

Montréal (Communauté urbaine) et al. v. André et al., [2003] R.J.Q. 720 (C.A.), leave to appeal denied (2003), 320 N.R. 395 (S.C.C.), consd. [para. 66].

Lacombe v. André - see Montréal (Communauté urbaine) et al. v. André et al.

Jauvin v. Québec (Procureur général) et al., [2004] R.R.A. 37 (Que. C.A.), leave to appeal denied (2004), 330 N.R. 391 (S.C.C.), consd. [para. 66].

Jauvin v. Québec (Attorney General) et al. - see Jauvin v. Québec (Procureur général) et al.

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 69].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 69].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22, refd to. [para. 69].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 83].

ter Neuzen v. Korn - see Neuzen v. Korn.

Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474; 27 N.R. 1, refd to. [paras. 111, 132].

Oniel v. Metropolitan Toronto Police Force et al. (2001), 141 O.A.C. 201; 195 D.L.R.(4th) 59 (C.A.), leave to appeal denied (2001), 284 N.R. 397; 158 O.A.C. 199 (S.C.C.), refd to. [paras. 111, 132].

Oniel v. Marks - see Oniel v. Metropolitan Toronto Police Force et al.

Trident Construction Ltd. v. Wardrop (W.L.) and Associates Ltd. et al., [1979] 6 W.W.R. 481; 1 Man.R.(2d) 268 (Q.B.), refd to. [para. 133].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 147].

R. v. Nikolovski (A.), [1996] 3 S.C.R. 1197; 204 N.R. 333; 96 O.A.C. 1, refd to. [para. 152].

R. v. Goldhar; R. v. Smokler (1941), 76 C.C.C. 270 (Ont. C.A.), refd to. [para. 153].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, consd. [para. 154].

R. v. Kendall (S.) (2005), 200 O.A.C. 18 (C.A.), refd to. [para. 160].

R. v. Lagace (G.) (2003), 178 O.A.C. 391 (C.A.), refd to. [para. 160].

Authors and Works Noticed:

Canada, Federal/Provincial/Territorial Heads of Prosecutions Committee Working Group, Report on the Prevention of Miscarriages of Justice (2004), p. 54 [para. 140].

Donald Marshall, Jr., Prosecution Report - see Nova Scotia, Royal Commission on the Donald Marshall Jr., Prosecution Report, Findings and Recommendations (1989).

Kaufman Report - see Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin.

Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Sophonow Report) (2001), pp. 22 [para. 153]; 33 [para. 164]; 94 [para. 75].

Nova Scotia, Royal Commission on the Donald Marshall Jr., Prosecution Report, Findings and Recommendations (1989), generally [para. 131, footnote 3].

Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), vol. 2, pp. 1136 to 1138 [para. 164].

Sophonow Report - see Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation.

Counsel:

Sean Dewart and Louis C. Sokolov, for the appellants;

David G. Boghosian and Anna Casemore, for the respondents.

This appeal was heard on April 5, 2005, before Goudge, Feldman, MacPherson, MacFarland and LaForme, JJ.A., of the Ontario Court of Appeal. The judgment of the Court of Appeal was released on September 26, 2005, including the following opinions:

MacPherson, J.A. (Goudge and MacFarland, JJ.A., concurring) - see paragraphs 1 to 128;

Feldman and LaForme, J.A., dissenting in part - see paragraphs 129 to 168.