Canada: Family Members Of Apparent Victims Of Crime Cannot Sue Criminal Investigators In Negligence

Last Updated: September 12 2011
Article by Kevin A. McGivney and David H. Elman

Most Read Contributor in Canada, September 2016

On April 8, 2011, the Ontario Court of Appeal released its decision in Wellington v. Ontario. The Court dismissed a negligent investigation claim brought by the estate and family members of a man shot by police against the Special Investigations Unit (SIU), an independent civilian agency responsible for investigating incidents of serious injury or death that may have resulted from criminal offences committed by police. The Court unanimously held that the SIU investigators did not owe the victim and family a private law duty of care in conducting their investigation.

The Courts below had allowed the claim to proceed on the basis that the law was unsettled and should be developed with the benefit of a full evidentiary record. The Ontario Association of Chiefs of Police (OACP) intervened in support of the SIU to argue that criminal investigators should not be held to owe a private duty of care to the apparent victims of the crimes they are investigating. In part, the OACP argued that, although perhaps well-intentioned, the recognition of such a duty of care risked privatizing the public function of criminal investigation.

In dismissing the claim, the Court of Appeal held that while criminal investigators may owe a duty of care to suspects they are investigating (Hill v. Hamilton) or to warn a narrow and distinct group of potential victims of a specific threat (Jane Doe), they do not owe a duty of care to victims of crime and their families in relation to the investigation of the alleged crimes. The Court held that when the SIU investigates allegations of criminal misconduct its duties are "overwhelmingly public in nature." In this regard, the Court opined that "(w)hile victims of crime and their families understandably may feel that they have a specific and particular interest, in the end, their interest in knowing and understanding the circumstances of an alleged crime ... is shared with all members of the public."

More generally, the Court noted that there is a well-established line of cases that stand "for the general proposition that public authorities, charged with making decisions in the general public interest, ought to be free to make those decisions without being subjected to a private law duty of care to specific members of the general public." The Court held that criminal investigations are "not aimed at or geared to the protection of the private interests of specific individuals and do not give rise to a private law duty sufficient to ground an action in negligence."

The Court accepted the argument of the OACP that there is "an inherent tension between the public interest in an impartial and competent investigation and a private individual's interest in a desired outcome of that same investigation..." Imposing a private law duty of care would be "seriously at odds with the fundamental role of (criminal investigators) to investigate allegations of criminal misconduct in the public interest."

The Court followed its 2001 decision in Norris v. Gatien in which the Court had previously addressed whether police investigators owed a private law duty of care to victims of crime. The plaintiffs and their supporting intervener, Aboriginal Legal Services of Toronto, had argued that the Supreme Court of Canada decisions in Odahvji v.Woodhouse (2003) and Hill v. Hamilton (2007) had effectively overruled the Court of Appeal's earlier decision. The Court disagreed and, in doing so, limited the application of the Odahvji and Hill decisions.

Finally, and in contrast to the majority decision of the Divisional Court, the Court of Appeal disagreed that the refusal to recognize a private law duty of care in relation to police investigations left the families of victims without appropriate and viable legal recourse. The Court noted that victims of crime may apply for compensation under the Compensation for Victims of Crime Act, may obtain standing in Coroner's inquests, may sue the perpetrators of the crime and have a voice in sentencing through victim impact statements.

The Court of Appeal's decision is significant as it places a clear limit on the scope of police liability for negligent investigation. Had the Court recognized a private duty of care in favour of victims of an alleged crime and their families, the potential exposure of investigators and police forces to lawsuits would have been significantly expanded. As the decision highlights the distinction between public and private duties, it may have a more general impact on claims in negligence raised against public authorities performing public functions.

The Wellington family, supported by the intervener, Aboriginal Legal Services of Toronto, has sought leave to appeal to the Supreme Court of Canada and we will keep you abreast of further developments in that regard in future editions.

Kevin and David acted on behalf of OACP before the Ontario Court of Appeal.

To read "Canadian Insurance Law Newsletter - Fall 2011" in full, please click here

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