Co-authored by Andrew Sprung, Student-at-law
In Good v. Toronto Police Services Board, 2013 ONSC 3026, the Ontario Superior Court of Justice dismissed a motion to certify a proposed class action brought on behalf of a class of persons defined as individuals who were arrested or detained by police in Toronto during the G20 Summit in June, 2010. The plaintiff alleged the following causes of action: "systemic" negligence; false imprisonment; assault and battery; conversion and trespass to chattels; abuse of public office; and various Charter breaches as against the governmental bodies responsible for four police forces (Toronto Police Services, RCMP, OPP, and Peel Regional Police), which acted as an Integrated Security Unit and operated under a unified command. Ultimately, Justice Horkins found that many of the pleaded causes of action were flawed and that there was a fundamental lack of commonality of issues which resulted in an unwieldy and unmanageable group of claims.
Justice Horkins's analysis of the five-part test for certification in s. 5(1) of the Class Proceedings Act was as follows.
(a) whether the pleading discloses a cause of action: The essence of the claims against the police was that, in their "planning, preparing, directing and overseeing the G20 security operations", they "deliberately intended to violate the fundamental rights of class members" or, alternatively, that in adopting a specific model of policing, they "intentionally or negligently failed to put adequate measures in place to ensure that these rights would be protected".
She dismissed the systemic negligence claim on the basis that the plaintiff could not demonstrate that the police owed a private law duty of care to the class members. The courts have recognized such duties of care only in certain circumstances: the duty to take reasonable care for the safety of a person in police custody; the duty to a particular subject under investigation; and the duty to specific individuals or groups that are at particular risk of becoming victims of crime. However, none of these duties was supported on the facts as pleaded. Further, no new duty of care should be recognized under the test set out in Anns v Merton London Borough Council,  A.C. 728 H.L., since it is clear that the legislative regime under which each of the police services operates provides that police owe their duties to the public at large and not to individual members of the public.
In addition, Justice Horkins found that it was plain and obvious, on the face of the pleading, that the claim of abuse of public office would fail and must be struck. She found that the plaintiff had properly pleaded the torts of assault and battery and conversion and trespass to chattels and the infringement of Charter rights – but only as against Toronto Police Services, which did not dispute that false imprisonment had been properly pleaded against it.
Justice Horkins struck the action as against all the defendants, except the Toronto Police Services, on the ground that there is no basis in law to claim that the other police services are responsible for policing in the City of Toronto. While the Integrated Security Unit consisted of representatives from all four police forces, it was not a legal entity with any statutory authority.
(b) whether there is an identifiable class: The proposed class included all individuals in the City of Toronto who were arrested and/or subjected to mass detention by police and who were subsequently released without charge and/or imprisoned. These class members were to be further divided among eight proposed subclasses: six based on police action in different locations; a residual subclass for those arrested outside of those six locations; and an "overlapping subclass" comprised of all those who were held at the Eastern Avenue Detention Centre. It was Justice Horkins's view that there were a number of difficulties with the proposed class and subclass definitions – they were unclear, arbitrary, and overly broad. She found that the plaintiff "seeks to certify as one class, eight distinct groups of claims with no common link", which "presents significant hurdles to the manageability of this proceeding".
(c) whether the claims raise common issues: Justice Horkins found that the majority of the proposed common issues were problematic for a variety of reasons - either because there was no acceptable subclass to which they applied or they would not advance the litigation for the group. Only the issues relating to the subclass of individuals held at the Eastern Avenue Detention Centre had sufficient evidence of commonality to meet the common issues criterion; those common issues focussed on the common set of circumstances and conditions in the detention centre and not the variety of circumstances that led to the detention of each individual.
(d) whether a class action is the preferable procedure: In addition, Justice Horkins found that a class action would not be a fair, efficient, and manageable method of advancing the claim because the "impermissible use of eight subclasses creates an unwieldy group of claims". She found that there was no single class that shares substantial common issues. Rather, the common issues were "subsumed by a plethora of individual issues" and the "result would be unmanageable litigation punctuated by numerous individual inquiries, and full trials for each class member". Such a class action would impede, rather than further, the goal of judicial economy. Further, a class action was not necessary for behaviour modification, since there were a number of other proceedings in which the conduct of police officers during the G20 Summit was already being reviewed, including Complaints to the Office of the Independent Review Director, independent investigations by the Special Investigations Unit and others, criminal charges and disciplinary action against some police officers, reviews and reports by numerous government and regulatory bodies, and numerous court proceedings.
(e) whether there was an adequate representative plaintiff with a workable litigation plan: This criterion also failed, since the representative plaintiff did not personally advance many of the proposed claims; she was never arrested or detained. Finally, Justice Horkins held that the deficiencies in the class action as a whole meant that no workable litigation plan could possibly be achieved.
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