Odhavji Estate v. Woodhouse (2003), 312 N.R. 305 (SCC)
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[French language version follows English language version]
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Temp. Cite: [2003] N.R. TBEd. DE.024
Estate of Manish Odhavji, deceased, Pramod Odhavji, Bharti Odhavji and Rahul Odhavji (plaintiffs/appellants) v. Detective Martin Woodhouse, Detective Constable Philip Gerrits, Officer John Doe, Officer Jane Doe, Metropolitan Toronto Chief of Police David Boothby, Metropolitan Toronto Police Services Board and Her Majesty the Queen in Right of Ontario (defendants/respondents)
Metropolitan Toronto Chief of Police David Boothby (appellant on cross-appeal) v. Estate of Manish Odhavji, deceased, Pramod Odhavji, Bharti Odhavji and Rahul Odhavji (respondents on cross-appeal) and Attorney General of Canada, Attorney General of British Columbia, Canadian Civil Liberties Association, Urban Alliance on Race Relations, African Canadian Legal Clinic, Mental Health Legal Committee, Association in Defence of the Wrongfully Convicted and Innocence Project of Osgoode Hall Law School (Ont.) (interveners)
(28425; 2003 SCC 69; 2003 CSC 69)
Indexed As: Odhavji Estate et al. v. Woodhouse et al.
Supreme Court of Canada
McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
December 5, 2003.
Summary:
The Special Investigation Unit (S.I.U.) of the Ministry of the Solicitor General (Ont.) exonerated two Metropolitan Toronto police officers of wrongdoing in the shooting death of Odhavji. Odhavji’s parents and brother sued for damages for the following: (1) misfeasance in a public office against the officers for having failed to co-operate in the S.I.U. investigation; (2) misfeasance in a public office against the Metropolitan Toronto Chief of Police (the Chief) for having failed to issue orders that would have ensured that the officers did not undermine the S.I.U. investigation (3) a claim under s. 50(1) of the Police Services Act against the Metropolitan Toronto Police Services Board, for statutory liability for the torts of the officers and the Chief; (4) negligent supervision of the officers against the Chief, the Board and Ontario, in that, if the officers had been properly supervised, they would have co-operated with the S.I.U; (5) misfeasance in a public office against Ontario; and (6) negligence against Ontario for Odhavji’s death. The plaintiffs alleged that they suffered psychiatric damages. The defendants moved to strike the claims against them for failure to disclose a reasonable cause of action. During the course of the hearing before the motions judge, the plaintiffs abandoned their claims against Ontario for negligence in Odhavji’s death and for misfeasance in public office.
The Ontario Court (General Division), in a decision reported [1998] O.T.C. Uned. 573, struck the claim in misfeasance in public office against the officers with leave granted to the plaintiffs to amend the statement of claim to plead misfeasance in public office framed in malice. The court struck the claim for misfeasance in public office against the Chief but not the claim for negligent supervision. The claim for negligent supervision against the Board was struck out but not the claim pursuant to s. 50(1) of the Act in respect to the claim against the chief based on negligent supervision. The claim for negligent supervision against Ontario was not struck out. The plaintiffs appealed from the dismissal of their claims for misfeasance in public office against the Chief and negligent supervision against the Board. The officers, the Chief, the Board and Ontario successfully sought leave to appeal to the Divisional Court respecting the claims against them that were not struck out [see 123 O.A.C. 177]. Laskin, J.A., ordered that the Divisional Court appeals be transferred to the Court of Appeal to be heard with the plaintiffs’ appeal.
The Ontario Court of Appeal, Feldman, J.A., dissenting, in a decision reported 142 O.A.C. 149, dismissed the plaintiffs’ appeal with the result that the plaintiffs’ claims for misfeasance in public office against the Chief and negligent supervision against the Board were struck out. The court also dismissed the appeals by the Chief and the Board, with the result that the plaintiffs’ claim for damages for negligent supervision against the Chief, for which the Board bore statutory liability, was not struck out. The officers’ appeals were allowed, with the result that the claim in misfeasance in public office against them was struck out. Ontario’s appeal was allowed with the result that the claim against it for negligent supervision was struck out. The plaintiffs appealed against the Court of Appeal’s decision to strike the claims for misfeasance in public office against the Chief and the officers, and the claims for negligent supervision against the Board and Ontario. The Chief cross-appealed against the Court of Appeal’s decision to allow an action for negligent supervision against him to proceed.
The Supreme Court of Canada allowed the plaintiffs’ appeal in part and dismissed the Chief’s cross-appeal. The actions for misfeasance in a public office against the Chief and the officers and the action in negligent supervision against the Chief should be allowed to proceed. The action in negligent supervision against the Board and Ontario should be struck.
Crown – Topic 1579
Torts by and against Crown – Negligence by Crown – Negligent supervision – The Special Investigation Unit (S.I.U.) of the Ministry of the Solicitor General (Ont.) exonerated two Metropolitan Toronto police officers of wrongdoing in the shooting death of Odhavji – Odhavji’s parents and brother sued the officers for damages for misfeasance in public office for having failed to co-operate with the S.I.U. – They also sued Ontario for damages for negligent supervision of the officers in that if the officers had been properly supervised, they would have co-operated with the S.I.U. as required by s. 113(9) of the Police Services Act – Ontario successfully moved to strike the negligent supervision claim – The Supreme Court of Canada ruled as follows: “Absent a more direct involvement in the day-to-day conduct of police officers or a statutory obligation to ensure that members of the force comply with s. 113(9), it would be improper to impose on the Province a private law obligation to ensure that members of the police force cooperate with the [S.I.U.]” – See paragraphs 52, 68 to 72.
Police – Topic 5005
Actions against police – General – Misfeasance in or abuse of public office – [See second
Torts – Topic 9162
].
Police – Topic 5021
Actions against police – Negligence – General – [See both
Torts – Topic 9154
].
Torts – Topic 76
Negligence – Duty of care – General principles – The Supreme Court of Canada discussed the general principles applicable to the duty of care analysis – The court stated that the plaintiffs here had to establish each of the following: (1) that the harm complained of was a reasonably foreseeable consequence of the alleged breach; (2) that there was sufficient proximity between the parties that it would be unjust or unfair to impose a duty of care on the defendants; and (3) that there existed no policy reasons to negative or restrict that duty – See paragraphs 43 to 52.
Torts – Topic 9154
Duty of care – Particular relationships – Claims against public officials, authorities or boards – Police officers and authorities -The Special Investigation Unit (S.I.U.) of the Ministry of the Solicitor General (Ont.) exonerated two Metropolitan Toronto police officers of wrongdoing in the shooting death of Odhavji – Odhavji’s parents and brother sued the officers for damages for misfeasance in a public office for having failed to co-operate with the S.I.U. – They also sued the Metropolitan Toronto Chief of Police for damages for negligent supervision of the officers in that if the officers had been properly supervised, they would have co-operated with the S.I.U. as required by s. 113(9) of the Police Services Act – The plaintiffs alleged that they suffered psychiatric damages – The Chief unsuccessfully moved to strike the negligent supervision claim – The Supreme Court of Canada ruled that if the plaintiffs could establish that the complained of harm was a reasonably foreseeable consequence of the Chief’s failure to ensure that the officers cooperated with the S.I.U., the Chief was under a private law duty of care to prevent such misconduct – See paragraphs 52 to 61.
Torts – Topic 9154
Duty of care – Particular relationships – Claims against public officials, authorities or boards – Police officers and authorities -The Special Investigation Unit (S.I.U.) of the Ministry of the Solicitor General (Ont.) exonerated two Metropolitan Toronto police officers of wrongdoing in the shooting death of Odhavji – Odhavji’s parents and brother sued the officers for damages for misfeasance in public office for having failed to co-operate with the S.I.U. – They also sued the Metropolitan Toronto Police Services Board for damages for negligent supervision of the officers in that if the officers had been properly supervised, they would have co-operated with the S.I.U. as required by s. 113(9) of the Police Services Act – The Board successfully moved to strike the negligent supervision claim – The Supreme Court of Canada ruled that the circumstances of the relationship inhering between the plaintiffs and the defendant were not such that a duty of care to ensure that members of the police force cooperate with the S.I.U. could rightly be imposed – See paragraphs 52, 62 to 67.
Torts – Topic 9162
Duty of care – Particular relationships – Claims against public officials, authorities or boards – Misfeasance in or abuse of public office – The Supreme Court of Canada discussed the tort of misfeasance in a public office – The court stated that the class of conduct at which the tort was targeted was not as narrow as the unlawful exercise of a particular statutory or prerogative power, but more broadly based on unlawful conduct in the exercise of public functions generally – The court also stated that misfeasance in a public office was an intentional tort whose distinguishing elements were twofold: (1) deliberate unlawful conduct in the exercise of public functions; and (2) awareness that the conduct was unlawful and likely to injure the plaintiff – Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff had to also prove the other requirements common to all torts – More specifically, the plaintiff had to prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law – See paragraphs 16 to 32.
Torts – Topic 9162
Duty of care – Particular relationships – Claims against public officials, authorities or boards – Misfeasance in or abuse of public office – The Special Investigation Unit (S.I.U.) of the Ministry of the Solicitor General (Ont.) exonerated two Metropolitan Toronto police officers of wrongdoing in the shooting death of Odhavji – Odhavji’s parents and brother sued for damages for misfeasance in a public office against: (1) the officers for having failed to co-operate with the S.I.U. investigation; (2) the Metropolitan Toronto Chief of Police (the Chief) for having failed to issue orders that would have ensured that the officers did not undermine the S.I.U. investigation – The statement of claim also alleged that the defendants “knew or ought to have known” that the alleged misconduct would cause the plaintiffs to suffer physically, psychologically and emotionally – The defendants moved to strike the claims – The Supreme Court of Canada dismissed the motion – The court ruled that it was not plain and obvious that the plaintiffs’ action had to fail – The court, however, struck the phrase “ought to have known” – See paragraphs 33 to 42.
Cases Noticed:
Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, consd. [para. 15].
Hunt v. Carey Canada Inc. – see Hunt v. T & N plc et al.
Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 15].
Ashby v. White (1703), 2 Ld. Raym. 938; 92 E.R. 126, refd to. [para. 18].
Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 19].
Powder Mountain Resorts Ltd. et al. v. British Columbia et al. (2001), 159 B.C.A.C. 14; 259 W.A.C. 14; 94 B.C.L.R.(3d) 14 (C.A.), refd to. [para. 19].
Alberta v. Nilsson (2002), 320 A.R. 88; 288 W.A.C. 88; 220 D.L.R.(4th) 474 (C.A.), refd to. [para. 19].
Northern Territory of Australia v. Mengel (1995), 129 A.L.R. 1 (H.C.), consd. [para. 20].
Garrett v. Attorney-General, [1997] 2 N.Z.L.R. 332 (C.A.), consd. [para. 20].
Three Rivers District Council et al. v. Bank of England, [2000] 2 W.L.R. 1220; 257 N.R. 1 (H.L.), consd. [para. 21].
Granite Power Corp. v. Ontario, [2002] O.J. No. 2188 (Sup. Ct.), refd to. [para. 22].
R. v. Dytham, [1979] Q.B. 722 (C.A.), refd to. [para. 24].
Alberta v. Nilsson (1999), 246 A.R. 201; 70 Alta. L.R.(3d) 267 (Q.B.), consd. [para. 25].
Uni-Jet Industrial Pipe Ltd. et al. v. Canada (Attorney General) et al. (2001), 156 Man.R.(2d) 14; 246 W.A.C. 14 (C.A.), refd to. [para. 25].
Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 31].
Guay v. Sun Publishing Co., [1953] 2 S.C.R. 216, refd to. [para. 41].
Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 41].
Le Lievre v. Gould, [1893] 1 Q.B. 491 (C.A.), consd. [para. 45].
Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), consd. [para. 46].
Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 46].
Hofstrand Farms Ltd. v. B.D.C. Ltd., [1986] 1 S.C.R. 228; 65 N.R. 261, refd to. [para. 46].
Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241, refd to. [para. 46].
London Drugs Ltd. v. Brassart and Vanwinkel, [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1, addendum 147 N.R. 336; 21 B.C.A.C. 159; 37 W.A.C. 159 (S.C.C.), refd to. [para. 46].
London Drugs Ltd. v. Kuehne & Nagel International Ltd. – see London Drugs Ltd. v. Brassart and Vanwinkel.
Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. et al., [1995] 1 S.C.R. 85; 176 N.R. 321; 100 Man.R.(2d) 241; 91 W.A.C. 241, refd to. [para. 46].
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, refd to. [para. 46].
Cooper v. Hobart – see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.
Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), consd. [para. 47].
Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, consd. [para. 49].
Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860; 262 N.R. 285, refd to. [para. 55].
Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 77].
R.B. v. Children’s Aid Society of Metropolitan Toronto – see Sheena B., Re.
Authors and Works Noticed:
Fleming, John G., The Law on Torts (9th Ed. 1998), p. 151 [para. 47].
Smith, John William, A Selection of Leading Cases on Various Branches of the Law (13th Ed. 1929), p. 282 [para. 18].
Counsel:
Julian N. Falconer and Richard Macklin, for the appellants/respondents on cross-appeal;
Kevin McGivney, Cheryl Woodin and Robert W. Traves, for the respondents, Woodhouse and Gerrits;
Ansuya Pachai and Kerri Kitchura, for the respondent/appellant on cross-appeal, Metropolitan Toronto Chief of Police David Boothby and the respondent, Metropolitan Toronto Police Services Board;
John P. Zarudny, Troy Harrison and James Kendik, for the respondent, Her Majesty the Queen in Right of Ontario;
David Sgayias, Q.C., and Anne M. Turley, for the intervener, Attorney General of Canada;
D. Clifton Prowse and J. Gareth Morley, for the intervener, Attorney General of British Columbia;
Written submissions only by John B. Laskin and Kristine M. Di Bacco, for the intervener, Canadian Civil Liberties Association;
Written submissions only by Peter J. Pliszka and Anne C. McConville, for the intervener, Urban Alliance on Race Relations;
Written submissions only by Marie Chen and Sheena Scott, for the intervener, African Canadian Legal Clinic;
Written submissions only by Suzan E. Fraser and Najma Jamaldin, for the intervener, Mental Health Legal Committee;
Written submissions only by Sean Dewart and Louis Sokolov, for the intervener, Association in Defence of the Wrongfully Convicted;
Written submissions only by Marlys A. Edwardh and Breese Davies for the intervener, Innocence Project of Osgoode Hall Law School.
Solicitors of Record:
Falconer Charney Macklin, Toronto, Ontario, for the appellants/respondents on cross-appeal;
Borden Ladner Gervais, Toronto, Ontario, for the respondents, Woodhouse and Gerrits;
City of Toronto, Toronto, Ontario, for the respondent/appellant on cross-appeal, Metropolitan Toronto Chief of Police David Boothby and the respondent, Metropolitan Toronto Police Services Board;
Attorney General of Ontario, Toronto, Ontario, for the respondent, Her Majesty the Queen in Right of Ontario;
Attorney General of Canada, Ottawa, Ontario, for the intervener, Attorney General of Canada;
Attorney General of British Columbia, Vancouver, British Columbia, for the intervener, Attorney General of British Columbia;
Torys, Toronto, Ontario, for the intervener, Canadian Civil Liberties Association;
Fasken Martineau DuMoulin, Toronto, Ontario, for the intervener, Urban Alliance on Race Relations;
African Canadian Legal Clinic, Toronto, Ontario, for the intervener, African Canadian Legal Clinic;
Suzan E. Fraser, Toronto, Ontario, for the intervener, Mental Health Legal Committee;
Sack Goldblatt Mitchell, Toronto, Ontario, for the intervener, Association in Defence of the Wrongfully Convicted;
Ruby & Edwardh, Toronto, Ontario, for the intervener, Innocence Project of Osgoode Hall Law School.
This appeal was heard on February 17, 2003, by McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada.
The judgment of the Supreme Court was delivered in both official languages on December 5, 2003, by Iacobucci, J.
