Kassian Estate et al. v. Canada (Attorney General) et al., 2014 ONSC 844

• Judge: J. Wilson, Linhares de Sousa and Thorburn, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: Monday June 02, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONSC 844;(2014), 320 O.A.C. 200 (DC)

Kassian Estate v. Can. (A.G.) (2014), 320 O.A.C. 200 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JL.006

The Estate of Edward Kassian, Deceased, by its Administrator, Michael E. Kassian, the Estate of Eileen Kassian, Deceased, by its Administrator, Michael E. Kassian, Michael E. Kassian, Kathleen E. Kassian and Evan M. Kassian by their Litigation Guardian, Michael E. Kassian, Douglas E. Kassian, Alycia L. Kassian, Andrew D. Kassian and Sylvia K. Bayle (plaintiffs/respondents) v. The Attorney General of Canada, the Akwesasne Police Services Board, the Mohawk Council of Akwesasne, Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community Safety and Correctional Services, the Estate of Dany Gionet by its Litigation Administrator, Peter Hagen, Constable Michael Biron and Sergeant Kenneth Chaussi and the Attorney General of Quebec (defendants/appellants)

(13-DV-1893; 2014 ONSC 844)

Indexed As: Kassian Estate et al. v. Canada (Attorney General) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, Linhares de Sousa and Thorburn, JJ.

June 2, 2014.

Summary:

Akwesasne territory included lands in Ontario, Quebec and New York State. It included an international border crossing. Agreements between Canada, Ontario, Quebec and the Mohawk Council of Akwesasne jointly funded and provided for the training and oversight of the Akwesasne Mohawk Police Service (AMPS). An operation directed by the R.C.M.P. respecting cigarette smuggling included the Ontario police (OPP), the Cornwall Police Service (CPS), the AMPS and the Canada Border Security Agency. In 2008, the R.C.M.P. terminated a police chase of a smuggling suspect because of public safety concerns. The AMPS took over the chase. The suspect drove through a stop sign at 130 kmph, killing a vacationing couple (the Kassians). The Kassians' estates and family members (plaintiffs) brought a negligence action for damages against Canada, the AMPS officers involved in the chase, the Akwesasne Police Services Board, the Council, and the suspect's estate. The plaintiffs claimed that Ontario and Quebec were vicariously liable for the officers' negligent conduct, given their level of operational control over the AMPS. Ontario and Quebec moved for summary judgment to dismiss the vicarious liability claims against them, arguing that their involvement was limited to funding. The plaintiffs moved to amend the statement of claim to include a claim that Ontario, Quebec and Canada were also directly negligent for failing to implement recommendations from a 1991 Audit Report that highlighted serious concerns respecting AMPS policing. The summary judgment motion was dismissed and the plaintiffs were granted leave to amend the statement of claim. Ontario, Quebec and Canada obtained leave to appeal both decisions.

The Ontario Divisional Court, Thorburn, J., dissenting, dismissed the appeal.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences - Bars or exclusions - Policies or "policy decisions" - The Ontario Divisional Court stated that "even where a decision is properly characterized as a policy decision, there are rare circumstances in which the government may still be held liable for its actions. ... Absent the rare instance of bad faith, the well established rule is that governments are exempt from liability for policy decisions, and that only negligent operational actions may attract liability." - The court referred to the following definition of operational and policy decisions: "True policy decisions involve social, political and economical factors. In such decisions, the authority attempts to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertakings and of their actual performance. True policy decisions will usually be dictated by financial, economic, social and political factors or constraints. The operational area is concerned with the practical implementation of the formulated policies, it mainly covers the performance or carrying out of a policy. Operational decisions will usually be made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness." - See paragraphs 253, 254, 261 and 268.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences - Bars or exclusions - Policies or "policy decisions" - [See Practice - Topic 2110].

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - Akwesasne territory included lands in Ontario, Quebec and New York State - It included an international border crossing - An Agreement between Canada, Ontario, Quebec and the Mohawk Council of Akwesasne provided for a partnership that jointly funded and provided for the training and oversight of the Akwesasne Mohawk Police Service (AMPS) - An operation directed by the R.C.M.P. respecting cigarette smuggling included the Ontario police (OPP), the Cornwall Police Service (CPS), the AMPS and the Canada Border Security Agency - In 2006, the R.C.M.P. terminated a police chase of a smuggling suspect because of public safety concerns - The AMPS took over the chase - The suspect drove through a stop sign at 130 kmph, killing a vacationing couple (the Kassians) - The Kassians' estates and family members (plaintiffs) brought a negligence action for damages against Canada, the AMPS officers involved in the chase, the Akwesasne Police Services Board, the Council, and the suspect's estate - The plaintiffs claimed that Ontario and Quebec were vicariously liable for the officers' negligent conduct, given their level of operational control over the AMPS - A motions judge subsequently allowed the plaintiffs to amend the statement of claim to include a claim of direct negligence by Ontario and Quebec for failing to respond to recommendations in a 1996 operational audit which highlighted deficiencies in AMPS policing and the failure to conduct further audits (i.e, responsible for, but took no steps to correct, deficient policing services) - Ontario, Quebec and Canada unsuccessfully argued that it was plain and obvious that the direct negligence claim did not disclose a cause of action because no duty of care was owed by them to the plaintiffs - The Ontario Divisional Court held that the motions judge did not err in allowing the addition of the direct negligence claim - It was not plain and obvious that the claim, while novel, would not succeed - The court stated that "There may or may not be a duty of care in the facts of this case, and there may or may not be policy factors that negate that duty of care, but these issues need to be determined on a full factual report" - See paragraphs 197 to 314.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The Ontario Divisional Court stated that "The 'plain and obvious' test ... is not the correct test on a motion for summary judgment. It seems that [the motions judge] was misled by several cases where courts incorrectly applied the plain and obvious test, which applies to a Rule 21 motion, not a Rule 20 motion for summary judgment. ... As outlined in Hryniak [SCC], the test to determine a summary judgment motion, applying the new framework and analysis, is and continues to be whether there is a genuine issue for trial." - See paragraphs 35, 36.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 and second Torts - Topic 2530].

Practice - Topic 5715

Judgments and orders - Summary judgments - Burden on applicant - The Ontario Divisional Court stated that "the burden of proof on a summary judgment motion must be considered in two stages: 1. First, the party who seeks summary dismissal must 'move with supporting affidavit material or other evidence'. The moving party bears the evidentiary burden with respect to proof of showing that there is no genuine issue requiring a trial. 2. It is only after the moving party has discharged its evidentiary burden of proving that there is no genuine issue which requires a trial for its resolution, that the burden shifts to the responding party to prove that its claim has a real chance of success based upon other evidence or specific facts showing that there is a genuine issue requiring a trial." - See paragraph 46.

Practice - Topic 5715.1

Judgments and orders - Summary judgments - Burden on respondent - [See Practice - Topic 5715].

Practice - Topic 8825.6

Appeals - General principles - Duty of appellate court on reviewing summary judgment decisions - The Ontario Divisional Court stated that the standard of review on an appeal from a decision on a motion for summary judgment was "absent an error of law, when there is no extricable error in principle, findings of mixed fact and law should not be overturned absent a palpable and overriding error" - See paragraph 26.

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - The Ontario Divisional Court stated that "vicarious liability may be imposed where the party in question did not personally engage in any tortious conduct but where the risks inherent in his or her enterprise materialize and cause harm, provided that liability is both fair and useful. The imposition of liability will often achieve the policy goal of deterrence because the person upon whom liability is imposed is in a position to effect change to reduce risk. ... the plaintiff must prove two elements: 1. The relationship is sufficiently close as to make a claim for vicarious liability appropriate. 2. The tort is sufficiently connected to the tortfeasor's assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise. In other words, to meet the test of vicarious liability, first, there is a test of proximity and the question that must be asked is whether the relationship is sufficiently close to make a claim for vicarious liability appropriate. Second, to meet the test of vicarious liability, there is a requirement that the alleged negligence of the employee or agent ... is sufficiently connected to their tasks, such that their negligence can be regarded as a materialization of the risks created by the employer or principal." - See paragraphs 141, 146, 147.

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - Akwesasne territory included lands in Ontario, Quebec and New York State - It included an international border crossing - An Agreement between Canada, Ontario, Quebec and the Mohawk Council of Akwesasne provided for a partnership that jointly funded and provided for the training and oversight of the Akwesasne Mohawk Police Service (AMPS) - An operation directed by the R.C.M.P. respecting cigarette smuggling included the Ontario police (OPP), the Cornwall Police Service (CPS), the AMPS and the Canada Border Security Agency - In 2008, the R.C.M.P. terminated a police chase of a smuggling suspect because of public safety concerns - The AMPS took over the chase - The suspect drove through a stop sign at 130 kmph, killing a vacationing couple (the Kassians) - The Kassians' estates and family members (plaintiffs) brought a negligence action for damages against Canada, the AMPS officers involved in the chase, the Akwesasne Police Services Board, the Council, and the suspect's estate - The plaintiffs claimed that Ontario and Quebec were vicariously liable for the officers' negligent conduct, given their level of operational control over the AMPS - Ontario and Quebec moved for summary judgment to dismiss the vicarious liability claims against them, arguing that their involvement was limited to funding - The summary judgment motion was dismissed - Ontario, Quebec and Canada appealed - The Ontario Divisional Court dismissed the appeal - The motions judge correctly determined that there was a genuine issue for trial respecting vicarious liability - The council employed the AMPS officers - However, there was a triable issue as to whether, by the terms of the Agreement and considering the total relationship of the parties, "there was a partnership or enterprise that made Quebec and Ontario vicariously liable, as employers" - See paragraphs 55 to 196.

Cases Noticed:

Hryniak v. Mauldin (2014), 453 N.R. 51; 366 D.L.R.(4th) 641; 2014 SCC 7, appld. [para. 26].

Combined Air Mechanical Services Inc. et al. v. Flesch et al. (2011), 286 O.A.C. 3; 108 O.R.(3d) 1; 2011 ONCA 764, refd to. [para. 31].

Ashak v. Family Responsibility Office (Ont.), [2013] O.A.C. Uned. 122; 357 D.L.R.(4th) 560; 2013 ONSC 39 (Div. Ct.), refd to. [para. 34].

Oak Incentives Group Inc. v. Toronto-Dominion Bank, [2010] O.T.C. Uned. 6976; 2010 ONSC 6976 (Sup. Ct.), refd to. [para. 35].

Mazzon et al. v. Wentworth Condominium Corp. No. 102 et al., [2011] O.T.C. Uned. 6036; 2011 ONSC 6036, refd to. [para. 35].

R. v. Wigman, [1987] 1 S.C.R. 246; 75 N.R. 51, refd to. [para. 45].

Régie des rentes du Québec v. Canada Bread Co. et al., [2013] 3 S.C.R. 125; 448 N.R. 36; 2013 SCC 46, refd to. [para. 45].

Kemp v. Rath (1996), 193 A.R. 26; 135 W.A.C. 26; 46 Alta. L.R.(3d) 1 (C.A.), refd to. [para. 45].

Connerty v. Coles et al., [2012] O.T.C. Uned. 5218; 2012 ONSC 5218, refd to. [para. 46].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 78].

Continental Bank Leasing Corp. v. Minister of National Revenue, [1998] 2 S.C.R. 298; 229 N.R. 58, refd to. [para. 93].

Bazley v. Curry - see P.A.B. v. Children's Foundation et al.

P.A.B. v. Children's Foundation et al., [1999] 2 S.C.R. 534; 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119, refd to. [para. 141].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 141].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 157].

McDonald v. Anishinabek Police Service et al. (2006), 218 O.A.C. 78; 83 O.R.(3d) 132 (Div. Ct.), refd to. [para. 163].

Hay v. Ontario Provincial Police, 2012 HRTO 2316, refd to. [para. 165].

Bruno Appliance and Furniture Inc. v. Hryniak (2014), 453 N.R. 101; 314 O.A.C. 49; 366 D.L.R.(4th) 671; 2014 SCC 8, refd to. [para. 194].

Marks v. Ottawa (City) et al. (2011), 280 O.A.C. 251; 2011 ONCA 248, refd to. [para. 212].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 216].

Attis et al. v. Canada (Minister of Health) et al. (2008), 254 O.A.C. 91; 93 O.R.(3d) 35; 2008 ONCA 660, leave to appeal refused (2009), 396 N.R. 397; 260 O.A.C. 394 (S.C.C.), refd to. [para. 217].

Gardner v. Canada (Attorney General) et al. (2013), 308 O.A.C. 184; 116 O.R.(3d) 429; 2013 ONCA 483, refd to. [para. 218].

Williams v. Canada (Attorney General) et al. (2009), 249 O.A.C. 150; 95 O.R.(3d) 401; 2009 ONCA 374, refd to. [para. 224].

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 227].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 227].

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; 2001 SCC 79, refd to. [para. 228].

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; 2003 SCC 69, refd to. [para. 244].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, refd to. [para. 253].

Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321, refd to. [para. 255].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 257].

Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1 (H.C.), refd to. [para. 257].

Aleksic et al. v. Canada (Attorney General) (2002), 165 O.A.C. 253; 215 D.L.R.(4th) 720 (Div. Ct.), refd to. [para. 260].

McLean et al. v. Siesel et al., [2001] O.T.C. 551 (Sup. Ct.), refd to. [para. 262].

Reynolds v. Kingston Police Services Board et al. (2007), 221 O.A.C. 216; 84 O.R.(3d) 738; 2007 ONCA 166, refd to. [para. 270].

Fullowka et al. v. Pinkerton's of Canada et al., [2010] 1 S.C.R. 132; 398 N.R. 20; 474 A.R. 1; 479 W.A.C. 1; 2010 SCC 5, refd to. [para. 273].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 282].

Eliopoulos et al. v. Ontario (Minister of Health and Long-Term Care) (2006), 217 O.A.C. 69; 82 O.R.(3d) 321 (C.A.), refd to. [para. 282].

K.M.D. v. Children's Aid Society of the Region of Peel et al., [2008] O.T.C. Uned. O58; 63 R.F.L.(3d) 146 (Sup. Ct.), refd to. [para. 299].

Roe v. Leone (2012), 122 O.R.(3d) 584; 2012 ONSC 6237, refd to. [para. 299].

Haskett v. Equifax Canada Inc. et al. - see Haskett v. Trans Union of Canada Inc. et al.

Haskett v. Trans Union of Canada Inc. et al. (2003), 169 O.A.C. 201; 63 O.R.(3d) 577 (C.A.), refd to. [para. 299].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 368, footnote 16].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 371, footnote 18].

McDonald v. Anishinabek Police Service et al. (2006), 218 O.A.C. 78 (Div. Ct.), refd to. [para. 385, footnote 29].

Chippewas of Kettle & Stony Point First Nation v. Shawkence, [2005] F.T.R. Uned. A20; 42 C.C.E.L.(3d) 304; 2005 FC 823, affd. [2006] N.R. Uned. 57; 49 C.C.E.L.(3d) 225; 2006 FCA 154, refd to. [para. 390, footnote 32].

Fockler et al. v. Toronto (City) et al., [2007] O.T.C. Uned. 9; 43 M.P.L.R.(4th) 141 (Sup. Ct.), refd to. [para. 391, footnote 33].

Whiteman v. Iamkhong et al., [2010] O.T.C. Uned. 1456; 206 C.R.R. 187; 2010 ONSC 1456, refd to. [para. 391, footnote 33].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 402, footnote 41].

A.O. Farms Inc. v. Sander (2000), 28 Admin. L.R.(3d) 315 (T.D.), refd to. [para. 404, footnote 43].

Drady v. Canada et al. (2008), 270 O.A.C. 1; 300 D.L.R.(4th) 443; 2008 ONCA 659, refd to. [para. 404, footnote 44].

River Valley Poultry Farm Ltd. v. Canada (Attorney General) et al. (2009), 248 O.A.C. 222; 95 O.R.(3d) 1; 2009 ONCA 326, refd to. [para. 406, footnote 46].

Comeau's Seafoods Ltd. v. Canada (Minister of Fisheries and Oceans), [1995] 2 F.C. 467; 179 N.R. 241 (F.C.A.), refd to. [para. 410, footnote 51].

Pantlin v. Toronto (City) et al., [2002] O.T.C. 462 (Sup. Ct.), refd to. [para. 410, footnote 51].

Bogner v. Tomei, 2012 ONSC 3939, refd to. [para. 425, footnote 59].

Statutes Noticed:

Department of Public Safety and Emergency Preparedness Act, S.C. 2005, c. 10, sect. 4, sect. 5, sect. 6(1) [para. 235].

Rules of Civil Procedure (Ont.), rule 20.04(2), rule 20.04(2.1), rule 20.04(2.2) [para. 30]; rule 21.01(1)(b) [para. 214].

Authors and Works Noticed:

First Nations Chiefs of Police Association and Human Resources Development Canada, Setting the Context: The Policing of First Nations Communities, generally [para. 390, footnote 31].

Linden, Allen M., Canadian Tort Law (7th Ed. 2001), p. 621 [para. 260].

Counsel:

William J. Sammon and Amanda Estabrooks, for the plaintiffs/respondents;

Craig Collins Williams and Talitha A. Nabbali, for the defendant/appellant, Attorney General of Canada;

Lise G. Favreau and Sunil S. Mathai, for the defendant/appellant, Her Majesty the Queen in Right of Ontario;

Matthieu Verner and Sylvie Labbé, for the defendant/appellant, Her Majesty the Queen in Right of Québec.

This appeal was heard on January 29 and 30, 2014, before J. Wilson, Linhares de Sousa and Thorburn, JJ., of the Ontario Divisional Court.

The judgment of the Court was released on June 2, 2014, and the following opinions were filed:

J. Wilson, J. (Linhares de Sousa, J., concurring) - see paragraphs 1 to 315;

Thorburn, J., dissenting - see paragraphs 316 to 431.